Sinu vs State Of Kerala

C.S.Dias, J

This is the second application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( ‘the BNSS’ for short) 2023, by the accused 2 and 4 in Crime No.740/2024 of the Chathannur Police Station, Kollam, which is registered against seven accused persons for allegedly committing the offences punishable under Sections 109(1), 115(2), 118(1), 118(2), 126(2), 189(2), 190, 191(2), 191(3) and 333 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’, for short). The petitioners were arrested and remanded to judicial custody on 22.7.2024.

The crux of the prosecution case is that: on 21.7.2024, at around 20:30 hours, the accused, in prosecution of their common intention, had trespassed into the house of the de facto complainant and wrongfully restrained him, and then the accused one and three hit him with a metal rod and caused grievous injuries to him. When the son of the de facto complainant attempted to intervene in the matter, the accused 1 to 4 hit him also on his head with an iron rod, and he too suffered grievous injuries. Then, when the nephew of the de facto complainant named, Jibin attempted to intervene in the matter, the fourth accused assaulted him on his head with an iron rod and the second accused beat him with a metal rod on his left hand and chin and he too suffered grievous injuries. The accused 5 to 7 manhandled Jibin by assaulting him all over his body. Thus, the accused have committed the above offences.

Heard; Sri.K.V Anil Kumar, the learned counsel appearing for the petitioners and Sri.C.S Hrithwik, the learned Senior 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 the petitioners’ culpability in the crime. The petitioners have filed the second application in view of change of circumstance since the investigation in the case is complete and recovery has been effected. The petitioners have been in judicial custody for the last 77 days and are persons with no criminal antecedents. Therefore, the petitioners may be enlarged on bail.

The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that there is no change of circumstance subsequent to the passing of Annexure-D order. However, there is a case and a counter-case registered in connection with the very same incident and that the petitioners have been in judicial custody for the last 77 days and they have no criminal antecedents.

The prosecution allegation against the petitioners is that, they along with other accused had assaulted the de facto complainant and he suffered grievous injuries. The fact remains that, the petitioners have been in judicial custody for the last 77 days, the investigation in the case is complete and recovery has been effected. Furthermore, the petitioners do not have 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. ”

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 77 days, the investigation in the case is complete, recovery has been effected, and furthermore, the petitioners do not have any criminal antecedents, I am of the view that the petitioners’ further detention is not necessary. Hence, I am inclined to allow the bail 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) each 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. They 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) 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 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].