IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 4TH DAY OF MAY 2022 / 14TH VAISAKHA, 1944
BAIL APPL. NO. 3185 OF 2022
CRIME NO.198/2022 OF Kolathur Police Station, Malappuram
PETITIONERS/ACCUSED NOS.1 TO 3:
1 ABHIJITH
AGED 22 YEARS
SON OF AYYAPPAN, THEKKETHIL HOUSE,
CHEMMALASSERY P.O, MALAPPURAM DISTRICT,.,
PIN - 679323
2 SUBRAMANYAN @ SUBRAN
AGED 30 YEARS
SON OF KUNJADI, THEKKETHIL HOUSE, CHEMMALASSERY
P.O, MALAPPURAM DISTRICT,, PIN - 679323
3 PRAJITH
AGED 29 YEARS
SON OF CHANDRAN, NAYKKANTHODI,
VALLAPPUZHA, CHERUKODE P.O, PATTAMBI,
PALAKKAD DISTRICT,, PIN - 679336
BY ADV NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY ADV.SMT.;SREEJA V., SR. PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.3185/2022
2
P.V.KUNHIKRISHNAN, J.
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B.A.No.3185 of 2022
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Dated this the 04th day of May, 2022
ORDER
This Bail Application is filed under Section 438 of Criminal Procedure Code.
2. Petitioners are the accused in Crime No.198/2022 of Kolathur Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 341 and 324 read with Section 34 of the Indian Penal Code. Subsequently the offence under Section 326 of the Indian Penal Code was also incorporated.
3. The prosecution case is that, on 05.04.2022 at 10 pm, the accused, due to previous enmity towards the defacto complainant, wrongfully restrained the defacto complainant and attacked him using a wooden log. Hence it is alleged that the accused committed the offence.
4. Heard the counsel for the petitioners and the B.A.No.3185/2022 3 Public Prosecutor. The counsel for the petitioners submitted that the allegation against the petitioners are not correct. The counsel also submitted that originally bailable offences are alleged and subsequently Section 326 of the Indian Penal Code is incorporated at the instance of the injured. The counsel also submitted that no serious injuries sustained to the injured. The counsel submitted that the alleged incident happened on 05.04.2022 and the complaint was filed only on 07.04.2022. The Public Prosecutor seriously opposed the bail application. It is true that that the allegation against the petitioners are very serious. This Court considered the contention raised by the petitioners. It is true that there is some delay in lodging the complaint. That itself is not a reason to grant bail to the petitioners. But, considering the facts and circumstances of the case, custodial interrogation of the petitioners may not be necessary. The petitioners can be directed to appear before the Investigating Officer till final report is filed.
5. Moreover, it is a well accepted principle that the B.A.No.3185/2022 4 bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.
6. Recently the Apex Court in Siddharth v State of Uttar Pradesh and Another (2021(5)KHC 353) considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder.
"12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it.
B.A.No.3185/2022 5 (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused."
7. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:
1. The petitioners shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation.
2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail on executing B.A.No.3185/2022 6 a bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned.
3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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.
4. The petitioners shall not leave India without permission of the jurisdictional Court.
5. The petitioners shall appear before the B.A.No.3185/2022 7 Investigating Officer on all Mondays and Fridays at 10 am, till final report is filed.
6. The petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected.
7. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
B.A.No.3185/2022
8
APPENDIX OF BAIL APPL. 3185/2022
PETITIONER ANNEXURES
Annexure1 TRUE PHOTOCOPY OF THE FIRST INFORMATION
REPORT IN CRIME NO.198/2022 OF KOLATHUR POLICE STATION DATED 07.04.2022.