Noufal M vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2024, by the 9th accused in Crime No. 891/2022 of the Mattannur Police Station, Kannur, which is registered against five accused persons for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 324, 308, 286 and 427 r/w Section 149 of the Indian Penal Code and Section 5 of the Kerala Prevention of Damage to Private Property and Payment of Compensation Act, 2019. The petitioner was arrested and remanded to judicial custody on 19.07.2024.

The crux of the prosecution case is that, on 23.09.2022, at around 06.30 hours, the accused, in furtherance of their common intention, assaulted the defacto complainant, who was returning from Kannr Airport on his motorcycle. Thus, the accused have committed the above offences.

Heard; Sri. E.A Harris, the learned counsel appearing for the petitioner and Sri.C.S. Hrithwik, the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The Investigating Officer has deliberately implicated the petitioner in five cases for allegedly committing similar offences on the very same date. A reading of the First Information Report would substantiate that the specific overt act is alleged against the first accused. There is no specific overt act alleged against the petitioner. In any given case, the petitioner has been in judicial custody for the last more than one month, the investigation in the case is complete, recovery has been effected, and the final report has been laid. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that the petitioner has created a ruckus along with other accused in the town and disrupted the peaceful life of the residents of the locality. The petitioner was absconding, and an absconding charge sheet has been filed. If the petitioner is released on bail, there is every likelihood of him committing a similar offence. Hence, the application may be dismissed.

On an evaluation of the materials on record, it can be seen that the specific overt act of committing the predicate offence under Section 308 of the IPC is attributed against the first accused. In any given case, the petitioner has been in judicial custody for the last nearly one month, the investigation in the case is complete, and the final report has been laid.

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 considering the fact that the petitioner has been in judicial custody since 19.07.2024, the investigation in the case is complete, recovery has been effected, and the final report has been laid, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions.

In  the  result,  the  application  is  allowed,  by directing the petitioner to be released on bail on him 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 petitioner shall appear before the Investigating Officer as and when required;

(ii) The petitioner 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 petitioner 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 him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(iv) The petitioner shall not commit any offence while he is on bail;

(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) Applications 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 petitioner even while the petitioner is 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].

(x) The observations made in this order are only for the purpose of considering the applications and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts.