Kerala High Court

Shafeek vs State Of Kerala on 10 October, 2024

Author: C.S.Dias

Bench: C.S.Dias

BAIL APPL. NO. 7564 OF 2024
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                                                   2024:KER:75209
             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                   THE HONOURABLE MR.JUSTICE C.S.DIAS

   THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946

                      BAIL APPL. NO. 7564 OF 2024

    CRIME NO.715/2024 OF Chavakkad Police Station, Thrissur

        AGAINST THE ORDER/JUDGMENT DATED IN CRMP NO.5933 OF 2024

OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHAVAKKAD

PETITIONER/S:

            SHAFEEK,
            AGED 38 YEARS
            S/O YOOSAF, ATHIKKAPARAMBIL HOUSE, ORUMANAYOOR P O,
            CHAVAKKAD, THRISSUR, PIN - 680512


            BY ADVS.
            K.ANAND
            AMEER SALIM
            NESILI NAZEER
            KIRAN P.M
            NANDHANA T.B.
            POOJA LAKSHMI K DILEEP




RESPONDENT/S:

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

    2       THE STATION HOUSE OFFICER,
            CHAVAKKAD POLICE STATION,THRISSUR DISTRICT, PIN -
            680506
            SR.PP.SEETHA S.


     THIS   BAIL    APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
10.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 BAIL APPL. NO. 7564 OF 2024
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                                                   2024:KER:75209
                            C.S.DIAS,J
             --------------------------------------------
             Bail Application No.7564 of 2024
             ---------------------------------------------
           Dated this the 10th day of October, 2024


                            ORDER

The application is filed under Sec.483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (in short,

'BNSS') by the sole accused in Crime No.715/2024 of the

Chavakkad Police Station, Thrissur, which is registered

against him, for allegedly committing the offences

punishable under Sections 118(1), 118(2), 110, 126(2), 296

and 115(2)(b) of the Bharatiya Nyaya Sanhita, 2023 (in

short, 'BNS'). The petitioner was remanded on 30.08.2024.

2. The prosecution case, in brief, is that: on

28.08.2024, at around 22:30 hours, while the defacto

complainant and his friend were consuming alcohol, the

accused invited them to share the alcohol. When the

defacto complainant refused to accept the invitation of the

accused, the accused uttered obscene words at him and

struck him with a beer bottle on his head. It is only because BAIL APPL. NO. 7564 OF 2024

2024:KER:75209 he warded off the attack, he did not lose his life. However,

he suffered grievous injuries. Thus, the accused has

committed the above offences.

3. Heard; Sri. K.Anand, the learned counsel

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

Public Prosecutor.

4. The learned counsel for the petitioner

submitted that the petitioner is innocent of the accusations

levelled against him. There is no material to substantiate

the petitioner's culpability in the crime. The Investigating

Officer has deliberately incorporated Sections 118(2) and

110 of the BNS to see that the petitioner is incarcerated.

In any given case, the petitioner has been in judicial

custody for the last 42 days, the investigation in the case is

complete and recovery has been effected. The allegation

that the petitioner has antecedents is also incorrect

because the petitioner has been acquitted in two of the

crimes, that were registered against him. Hence, the

application may be allowed.

BAIL APPL. NO. 7564 OF 2024

2024:KER:75209

5. The learned Public Prosecutor opposed the

application. She submitted that there are incriminating

materials to substantiate the petitioner's involvement in the

crime. The investigation is only at the nascent stage. If the

petitioner is enlarged on bail, there is every likelihood of

him committing a similar offence. Hence, the application

may be dismissed.

6. The prosecution allegation against the petitioner

is that, he assaulted the defacto complainant with a beer

bottle, and he suffered grievous injuries. The said allegation

prima facie stands corroborated by the discharge summary

of the defacto complainant issued by the Aswani Hospital,

Thrissur dated 11.09.2024, which shows that the defacto

complainant suffered a depressed fracture of the maxilla.

However, that is a matter to be investigated and ultimately

decided after trial. The fact remains that the petitioner has

been in judicial custody for the last more than 42 days, the

investigation in the case is complete and recovery has been

effected.

BAIL APPL. NO. 7564 OF 2024

2024:KER:75209

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 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 BAIL APPL. NO. 7564 OF 2024

2024:KER:75209 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 a careful 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 42 days,

the investigation in the case is complete and recovery has

been effected, I am of the view that the petitioner is

entitled to be enlarged on bail. 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.1,00,000/- (Rupees One lakh only)

with two solvent sureties each for the like sum, to the BAIL APPL. NO. 7564 OF 2024

2024:KER:75209 satisfaction of the court having jurisdiction, which shall be

subject to the following conditions:

i. The petitioner shall appear before the Investigating Officer on alternate Saturdays 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 BAIL APPL. NO. 7564 OF 2024

2024:KER:75209 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 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/10.10.24 BAIL APPL. NO. 7564 OF 2024

2024:KER:75209 APPENDIX OF BAIL APPL. 7564/2024

PETITIONER ANNEXURES

Annexure A TRUE COPY OF FIR NO: 715/2024 DATED 29.08.2024 OF CHAVAKKAD POLICE STATION, THRISSUR DISTRICT

Annexure B TRUE COPY OF THE ORDER IN CRL. M P NO: