Madan Kumar vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'), by the accused 1 and 4 to 6 in Crime No.334/2024 of the Maranallor Police Station, Thiruvananthapuram, which is registered against six accused persons for allegedly committing the offences punishable under Sections 109(2), 115(2), 118(1), 189(2), 190, 191(2), 191(3), 296(b), 329(b) and 61(2)(a) of the Bharatiya Nyaya Sanhita, 2023 (in short, 'BNS'). The petitioners were arrested and remanded to judicial custody on 15.08.2024.

The concise case of the prosecution is that: on 03.08.2024, at around 19:45 hours, the accused, in prosecution of their common intention, had formed an unlawful assembly and the accused 1 to 3 assaulted the defacto complainant with dangerous weapons and inflicted serious injuries on them. The accused 4 to 6 assisted the accused 1 to 3 in committing the above offences. Thus, the accused have committed the above offences.

Heard; Sri.Prem Navas J.R., the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Special Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately incorporated Section 109 of the BNS to see that the petitioners are incarcerated. In any given case, the petitioners have been in judicial custody for the last nearly one month, the investigation in the case is complete and recovery has been effected. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the bail application. She submitted that it was the accused 1 to 3 who inflicted serious injuries on the defacto complainant with dangerous weapons. The investigation in the case is only at the nascent stage. The 1st accused is a person with four other criminal antecedents. If the petitioners are enlarged on bail, there is every likelihood of them tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the allegation against the accused 4 to 6 is that they assisted the accused 1 to 3 in committing the above offences.

The prosecution case is that, the accused 1 to 6 had wrongfully restrained the defacto complainant, and the accused 1 to 3 assaulted him with dangerous weapons and he suffered serious injuries. The allegation against the accused 4 to 6 is that they assisted the accused 1 to 3 in committing the above offences.

Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that “bail is the rule and jail is an exception.

On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on comprehending that there are specific overt acts alleged against the 1st accused, who has inflicted grievous injuries on the defacto complainant, and he is a person with criminal antecedents as he is involved in four other crimes of a similar nature, I am not satisfied that the 1st accused has made out sufficient grounds to enlarge him on bail. On the contrary since there are no specific overt acts alleged against the accused 4 to 6 and that they have been in judicial custody for the last nearly one month, the investigation in the case, so far as they are concerned, is practically complete and recovery has been effected, I am satisfied that the petitioners 2 to 4/accused 4 to 6 have to be enlarged on bail.

In the result:

(1) The application filed by the 1st petitioner/1st accused is dismissed.

(2) The application filed by the petitioners 2 to 4/accused 4 to 6 is allowed.

In the result, the application is allowed, by directing the petitioners 2 to 4/accused 4 to 6 to be released on bail on them executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

i. The petitioners 2 to 4/accused 4 to 6 shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required;

ii. The petitioners 2 to 4/accused 4 to 6 shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

iii. The petitioners 2 to 4/accused 4 to 6 shall not commit any offence while they are on bail;

iv. The petitioners 2 to 4/accused 4 to 6 shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passports, they shall file affidavits to the effect before the court below on the date of execution of the bond;

v. In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

vi. Application for deletion/modification of the bail conditions shall be moved and entertained by the court below.

vii. Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners 2 to 4/accused 4 to 6 even while the petitioners 2 to 4/accused 4 to 6 are on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].