Madan Kumar vs State Of Kerala
2024 Latest Caselaw 29756 Ker

Kerala High Court

Madan Kumar vs State Of Kerala on 22 October, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                 2024:KER:78314

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
   TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946

                  BAIL APPL. NO. 8482 OF 2024

        CRIME NO.334/2024 OF MARANALLOR POLICE STATION,
                       THIRUVANANTHAPURAM
PETITIONER:
         MADAN KUMAR
         AGED 34 YEARS
         S/O RAMU, RESIDING AT MEDICAL COLLEGE QUARTERS, NO:
         E1, MEDICAL COLLEGE WARD, CHERUVAIKKAL VILLAGE,
         THIRUVANANTHAPURAM DISTRICT,, PIN - 695011

         BY ADVS. J.R.PREM NAVAZ
                  PREETHA RANI M.S.
                  MUHAMMED SWADIQ
                  O.MOHAMED BASIL KOYA THANGAL


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


OTHER PRESENT:
          SR PP SMT SETHA S

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 B.A.No.8482/2024

                                            -:2:-

                                                                   2024:KER:78314

                                    ORDER

Dated this the 22nd day of October,2024

This is the second application filed under

Section 483 of the Bharatiya Nagarik Suraksha

Sanhita, 2023, by the first accused in Crime

No.334/2024 of the Maranallor Police Station,

Thiruvananthapuram, which is registered against six

accused persons for allegedly committing the offences

punishable under Sections 109(2), 115(2), 118(1),

189(2), 190, 191(2), 191(3), 296(b), 329(b) and 61(2)(a)

of the Bharatiya Nyaya Sanhita, 2023 (in short, 'BNS').

The petitioner was remanded to judicial custody on

15.08.2024.

2. The concise case of the prosecution is that:

on 03.08.2024, at around 19:45 hours, the accused, in

prosecution of their common intention, had formed an

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assaulted the de-facto complainant with dangerous

weapons and inflicted serious injuries on them. The

accused Nos.4 to 6 assisted the accused Nos.1 to 3 in

committing the above offences. Thus, the accused have

committed the above offences.

3. Heard; Sri.Prem Navas J.R., the learned

counsel appearing for the petitioners and Smt.Seetha

S., the learned Special Public Prosecutor.

4. The learned counsel for the petitioner

submitted that the petitioner is totally innocent of the

accusations levelled against him. There is a change of

circumstance subsequent to the passing of Annexure-2

order because the investigation in the case is

practically complete and recovery has been effected. In

any given case, the petitioner has been in judicial

custody for the last 67 days. This Court had dismissed

the petitioner's earlier application for the sole reason

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that he has antecedents. In fact, four cases registered

against the petitioner are all for minor offences. All

four cases are prior to the year 2022. The petitioner is

willing to abide by any stringent condition that may be

imposed by this Court. Hence, the application may be

allowed.

5. The learned Public Prosecutor opposed the

application. She submitted that there are incriminating

materials to substantiate the petitioner's culpability in

the crime. It is the petitioner who assaulted the

de-facto complainant on the back of his head with a

nunchaku, and he suffered serious injuries. The

petitioner is an accused in Crime Nos.2252/2019,

1093/2020, 1097/2020 & 1170/2022 all registered by

the Medical College Police Station. If the petitioner is

enlarged on bail, there is every likelihood of him

committing a similar offence. Hence, the application

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may be dismissed.

6. The prosecution case is that, the petitioner,

along with the other accused, had wrongfully

restrained the de-facto complainant, and the petitioner

assaulted the de-facto complainant with a nunchaku on

the back of his head. The medical records prima facie

prove the petitioner's culpability in the crime.

7. The petitioner's earlier application was

dismissed by Annexure-2 order, principally for the

reasons that the investigation was in progress and the

petitioner has criminal antecedents.

8. On a perusal of the bail objection report, I

find that the four crimes registered against the

petitioner are prior to the year 2022. In Crime

No.2252/2019, the petitioner is alleged to have

committed the offence under Section 307 of the IPC.

All the other cases are for committing minor offences.

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The fact remains that the petitioner has been in judicial

custody for the last 67 days, the investigation in the

case is practically complete, and recovery has been

effected.

9. 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

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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.

10. Similarly, in Jalaluddin Khan v Union of

India [2024 INSC 604] has observed in the following

lines:

"21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. 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."

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11. On a careful consideration of the facts, the

rival submissions made across the Bar, and the

materials placed on record, particularly on

comprehending the fact that the petitioner has been in

judicial custody for the last 67 days, that the

investigation in the case is practically complete, and

recovery has been effected, I am of the view that the

petitioner's further detention is unnecessary. 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

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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

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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 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 Anr.

[2020 (1) KHC 663].

Sd/-

                                            C.S.DIAS,JUDGE
DST/22.10.24                                                  //True copy//

                                                              P.A. To Judge