Rajgul 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 3 in Crime No.560/2024 of the Varkala Police Station, Thiruvananthapuram, which is registered against the accused persons for allegedly committing the offences punishable under Sections 294(b), 341, 324 and 307 of the Indian Penal Code (in short, 'IPC') and Section 27 of the Arms Act. The petitioners were arrested and remanded to judicial custody on 10.07.2024.

The concise case of the prosecution is that: on 18.04.2024, at around 13:30 hours, the accused had wrongfully restrained the defacto complainant and the 1st accused attempted to cut him on his head with a chopper. It is only because he evaded the attack, he did not lose his life. However, he suffered a deep injury on his left hand. Then the 3rd accused attacked him with a sword twice and he suffered injuries. Thus, the accused have committed the above offences.

Heard; Sri.M.R.Sasith, the learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Special Public Prosecutor.

The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. There is no material to substantiate that the petitioners have committed the above offences. A reading of the First Information Report would clearly establish that the offence under Section 307 of the IPC is not attracted. The Investigating Officer has deliberately incorporated the said offence to see that the petitioners are incarcerated. In any given case, the petitioners have been in judicial custody for the last more 64 days, the investigation in the case is complete, recovery has been effected and the charge sheet has been filed. Hence, the application may be allowed.

The learned Public Prosecutor opposed the bail application. He submitted that the petitioners have caused serious injuries on the defacto complainant which is evident from the finding of this Court in Annexure A4 order. The 1st accused is involved in three other crimes of similar nature. If the petitioners are enlarged on bail, there is every likelihood of them intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. However, he submitted that the investigation in the case is complete and the final report has been laid on 31.08.2024.

The prosecution case is that, the 2nd accused had wrongfully restrained the defacto complainant and both the petitioners attacked him with dangerous weapons and inflicted serious injuries on him. The fact remains that the petitioners have been in judicial custody for the last 64 days, the investigation in the case is complete, the recovery has been effected 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.

Similarly, in Jalaluddin Khan v Union of India, [2024 INSC 604] the Honourable Supreme Court has observed in the following lines:

“21. xxxxx When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.”

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 petitioners have been in judicial custody for the last 64 days, the investigation in the case is complete, the recovery has been effected and the final report has been laid, I am of the firm view that the petitioners' further detention is unnecessary. Hence, I am inclined to allow the application.

In the result, the application is allowed, by directing the petitioners 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 shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required;

ii. The petitioners 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 shall not commit any offence while they are on bail;

iv. The petitioners 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 even while the petitioners 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].