Kerala High Court

Mathai. M.P. @ Mathaikunju vs State Of Kerala on 1 November, 2024

Author: C.S.Dias

Bench: C.S.Dias

BAIL APPL. NO. 7704 OF 2024
                                     1


                                                       2024:KER:81227
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

    FRIDAY, THE 1ST DAY OF NOVEMBER 2024 / 10TH KARTHIKA, 1946

                      BAIL APPL. NO. 7704 OF 2024

     CRIME NO.1801/2023 OF Angamali Police Station, Ernakulam

     AGAINST THE ORDER/JUDGMENT DATED 05.09.2024 IN CRMC NO.2586

OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ARISING OUT

OF THE ORDER/JUDGMENT DATED 24.08.2024 IN CMP NO.1572 OF 2024 OF

JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY

PETITIONER/S:

            MATHAI. M.P. @ MATHAIKUNJU,
            AGED 75 YEARS
            S/O.PAULOSE, MOOLAN HOUSE, CHAKKARAPARAMBU,
            PEECHANIKADU KARA, ANGAMALY VILLAGE., PIN - 683572


            BY ADVS.
            M.G.JEEVAN
            HEERA MURALEEDHARAN K.




RESPONDENT/S:

            STATE OF KERALA,
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            ERNAKULAM., PIN - 682031



OTHER PRESENT:

            SR PP SMT SEETHA S


     THIS   BAIL    APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
01.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 BAIL APPL. NO. 7704 OF 2024
                                2


                                                   2024:KER:81227
                            C.S.DIAS,J
             --------------------------------------------
             Bail Application No.7704 of 2024
            ---------------------------------------------
          Dated this the 1st day of November, 2024


                              ORDER

The application is filed under Section 483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'),

by the sole accused in Crime No.1801/2024 of the Angamali

Police Station, Ernakulam, which is registered against the

accused for allegedly committing the offences punishable

under Sections 329(3), 118(2) and 109(1) of the Bharatiya

Nyaya Sanhita, 2023 (in short, 'BNS'). The petitioner was

remanded to judicial custody on 12.08.2024.

2. The crux of the prosecution case is that: on

10.08.2024, at around 17:30 hours, the accused trespassed

into house of the first informant and assaulted his son named

Vineesh (injured) on his head several times with an iron pipe

and he suffered grievous injuries on his skull, forehead, facial

bones and he suffered a loss of vision in both eyes. Thus, the

accused has committed the above offences. BAIL APPL. NO. 7704 OF 2024

2024:KER:81227

3. Heard; Sri.M.G.Jeevan, the learned counsel

appearing for the petitioner and Smt.Seetha S., the learned

Senior Public Prosecutor.

4. The learned counsel for the petitioner submitted

that the petitioner is innocent of the accusations leveled

against him. There is no material to substantiate the

petitioner's culpability in the crime. The Investigating Officer

has deliberately incorporated Section 109 of the BNS, to see

that the petitioner is arrested and incarcerated. In any given

case, the petitioner is a 75 year old man who has been in

judicial custody for the last 81 days, the investigation in the

case is complete and recovery has been effected.

Furthermore, the petitioner does not any have criminal

antecedents. Hence, the application may be allowed.

5. The learned Public Prosecutor opposed the

application. She submitted that the investigation is in

progress. She also stated that the petitioner has committed a

very heinous crime by attempting to murder the injured. She

made available the treatment certificate of the injured dated BAIL APPL. NO. 7704 OF 2024

2024:KER:81227 26.09.2024 issued by the Govt. Medical College Hospital,

Kottayam to substantiate her assertion, that the injured

suffered fractures on his skull and face. She stated that if the

petitioner is enlarged on bail, there is every likelihood of him

intimidating the witnesses and tampering with the evidence.

Hence, application may be dismissed.

6. The prosecution allegation against the petitioner is

that, he trespassed into the house the defacto complainant

and assaulted his son/injured with an iron pipe and he

suffered grievous injuries. The said allegation, prima facie,

stands substantiated by the treatment records referred to

above. However, the fact remains that the petitioner has been

in judicial custody for the last 81 days, the investigation in the

case is complete and recovery has been effected.

Furthermore, I find that the petitioner does not have any

criminal antecedents and he is a man aged 75 years.

7. 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 BAIL APPL. NO. 7704 OF 2024

2024:KER:81227 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.

8. 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 BAIL APPL. NO. 7704 OF 2024

2024:KER:81227 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, 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 81 days, the

investigation in the case is complete, recovery has been

effected, the petitioner does not have any criminal

antecedents and he is aged 75 years, 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 BAIL APPL. NO. 7704 OF 2024

2024:KER:81227 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 BAIL APPL. NO. 7704 OF 2024

2024:KER:81227 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 jurisdictional court.

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].

Sd/-

C.S.DIAS,JUDGE

rkc/01.11.24 BAIL APPL. NO. 7704 OF 2024

2024:KER:81227 APPENDIX OF BAIL APPL. 7704/2024

PETITIONER ANNEXURES

Annexure 1 TRUE COPY OF THE ORDER DATED 28.4.2024 IN CMP.1572/2024 BEFORE LEARNED JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALY..

Annexure II CERTIFIED COPY OF CRL.M.C.2586/2024 ON THE FILE OF DISTRICT SESSIONS COURT, ERNAKULAM.

Annexure III TRUE COPY OF THE FIRST INFORMATION REPORT ALONG WITH THE FIRST INFORMATION STATEMENT DATED 11.8.2024 IN CRIME NO:1801/2024 OF ANGAMALY POLICE STATION.