Saimon 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 sole accused in Crime No.323/2024 of the Payyavoor Police Station, Kannur, which is registered against him for allegedly committing offences punishable under Sections 447, 341, 324, 307 and 506 of the Indian Penal Code, 1860 (for short, ‘IPC’). The petitioner was arrested and remanded to judicial custody on 08.08.2024.

2.The gist of the prosecution case is that, on 18.06.2024, around 23:00 hours, the accused trespassed into the house of the defacto complainant - his brother – and attacked him with a spade, and inflicted grievous injuries on his head and body. Thus, the accused has committed the above offences.

3.Heard; Sri.Nandagopal S.Kurup the learned counsel appearing for the petitioner and Smt. Seetha S, the learned Senior Public Prosecutor.

The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner has committed the offence under Section 307 of the IPC. The said offence has been deliberately incorporated by the Investigating Officer to see that the petitioner is incarcerated. In fact, the petitioner has filed B.A. No.5400/2024 before this Court for an order of pre-arrest bail. By Annexure A5 order, this Court dismissed the application, but permitted the petitioner to surrender before the Investigating Officer. Consequently, the petitioner surrendered before the Investigating Officer, but he was arrested on 8.8.2024. The petitioner has been in judicial custody from the said date, the investigation in the case is complete, recovery has been effected and the final report has been laid on 20.8.2024. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

5.The learned Public Prosecutor opposed the application. She submitted that if the petitioner is enlarged on bail, there is every likelihood of him intimidating the victim and witnesses and tampering with evidence, especially since the victim is his own brother. She prayed that the application may be dismissed.

The prosecution case is that, the petitioner had trespassed into the house of the defacto complainant, assaulted him with a spade, and inflicted grievous injuries on him. The said accusation, prima facie, stands corroborated by the treatment records referred to above, although that is a matter to be investigated and ultimately decided at the time of trial. The fact remains that the petitioner has been in judicial custody for last nearly one month, investigation in the case is complete, recovery has been effected and the final report has been laid on 20.8.2024. The materials on record do not show that the petitioner has any criminal antecedents.

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.”

9.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 for the last nearly one month, investigation in the case is complete, recovery has been effected, and furthermore, the petitioner does not have any criminal antecedents, I am of the view that the petitioner’s further detention is not necessary. Hence, I am inclined to allow the bail application.

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 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 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;

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

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit 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) 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].