Kerala High Court
Beevi Kunju vs State Of Kerala on 3 September, 2024
Author: C.S.Dias
Bench: C.S.Dias
BAIL APPL. NO. 6481 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
BAIL APPL. NO. 6481 OF 2024
CRIME NO.213/2024 OF Kallambalam Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.2586
OF 2024 OF HIGH COURT OF KERALA
PETITIONER/S:
1 BEEVI KUNJU,AGED 52 YEARS, D/O SOUJATH BEEVI, A.N
MANZIL, KOONANCHALIL, MUKKUKADA, MARUTHIKUNNU
P.O.,KUDAVOOR VILLAGE, THIRUVANANTHAPURAM, PIN -
695603
2 MUHAMMED SHAN,AGED 28 YEARS, S/O
SHAJAHAN,POOVANKAL HOUSE, NADAYARA, MUTTAPALAM
P.O., CHEMMARUTHI VILLAGE, THIRUVANANTHAPURAM, PIN
- 695145
BY ADV LATHEESH SEBASTIAN
RESPONDENT/S:
STATE OF KERALA,REPRESENTED BY PUBLIC
PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
ADGP SRI GRASHIOUS KURIAKOSE ,SR PP SRI C K SURESH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BAIL APPL. NO. 6481 OF 2024
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C.S.DIAS,J
--------------------------------------------
Bail Application No.6481 of 2024
---------------------------------------------
Dated this the 3rd day of September, 2024
ORDER
This is the second application filed under
Section 483 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (in short, 'BNSS') by the accused 1 and 2 in Crime
No.213/2024 of the Kallambalam Police Station,
Thiruvananthapruam, registered against the accused,
for allegedly committing the offences punishable under
Sections 323, 324, 325 and 302 r/w. Section 34 of the
Indian Penal Code (in short, 'IPC'). The petitioners were
arrested and remanded to judicial custody on
19.03.2024.
2. The gravamen of the prosecution case is that:
on 20.02.2024, at around 22:00 hours, the accused in
furtherance of their common intention to murder Abdul
Majeed (deceased, and the husband of the 1 st accused,
step father of the 2nd accused and the father of the 3 rd
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st
accused), the 1 accused hit the deceased on the back of
his head with the handle of a hoe, and the accused 2 and
3 pushed the deceased on to the floor and his head hit
against the wall. Then, the accused kicked and beat the
deceased all over his body and he suffered grievous
injuries. The deceased lost his life on 25.02.2024 at
23:30 hours at the Medical College Hospital,
Thiruvananthapuram. Thus, the accused have committed
the above offences.
3. Heard; Sri.Latheesh Sebastian, the learned
counsel appearing for the petitioners and Sri.C.K
Suresh, the learned Special Public Prosecutor.
4. The learned counsel for the petitioners
submitted that the petitioners are totally innocent of the
accusations levelled against them. By no stretch of
imagination can Section 302 of the IPC be attributed
against the petitioners. In fact, the 2nd accused had also
suffered a serious injury in the incident. It is only as an
act of private defence, the 2nd accused had pushed the
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deceased on to the floor. By Annexure A1 order, this
Court had already enlarged the 3 rd accused on bail on
06.06.2024. The investigation in the case is complete,
recovery has been effected and the final report has been
laid. The crime has already been committed to the Court
of Session and the petitioners do not have any criminal
antecedents. Hence, the application may be allowed.
5. The learned Special Public Prosecutor did not
seriously oppose the bail application. He submitted that
the investigation in the case is complete, the final report
has been laid and the matter has already been
committed to the Court of Session. He stated that if the
petitioners are released on bail, stringent conditions
may be imposed, so that they do not intimidate the
witnesses and tamper with the evidence.
6. The prosecution allegation against the accused
is that, on 20.02.2024, the 1st accused hit the deceased
on his head with the handle of a hoe and he suffered a
deep injury. Immediately thereafter, the accused 2 and 3
pushed the deceased on to the ground and his head hit
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against the wall and suffered injuries both on his head
as well as neck, and he suffered a fracture on his neck.
7. The petitioners had earlier filed B.A.
No.2586/2024 for a similar relief. By Annexure A1
order, this Court dismissed the application filed by the
petitioners by an elaborate order on finding that the
investigation was only at the nascent stage and there
was a likelihood of the petitioners interfering with the
investigation. Indisputably, the investigation in the case
is complete and the final report has been laid.
8. In Satender Kumar Antil v. CBI and
another [(2022) 10 SCC 51], the Hon'ble Supreme
Court, after a meticulous survey of all the precedents on
the law governing bail, has laid down exhaustive
guidelines for the Courts while dealing with the bail
applications. It is profitable to extract the relevant
paragraphs of the decision in this context of the case on
hand, which reads thus:
"12. The principle that bail is the rule and jail is the exception
has been well recognised through the repetitive
pronouncements of this Court. This again is on the touchstone
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of Article 21 of the Constitution of India. This Court in Nikesh
Tarachand Shah v. Union of India [Nikesh Tarachand
Shah v. Union of India, (2018) 11 SCC 1 : (2018) 2 SCC (Cri)
302] , held that : (SCC pp. 22-23 & 27, paras 19 & 24) ."
13. Further this Court in Sanjay Chandra v. CBI [Sanjay
Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 :
(2012) 2 SCC (L&S) 397] , has observed that : (SCC p. 52,
paras 21-23)
"21. In bail applications, generally, it has been laid
down from the earliest times that the object of bail is
to secure the appearance of the accused person at his
trial by reasonable amount of bail. The object of bail is
neither punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless it is
required to ensure that an accused person will stand
his trial when called upon. The courts owe more than
verbal respect to the principle that punishment begins
after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
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
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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.
10. 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
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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".
11. Similarly, the Honourable Supreme Court in
Javed Gulam Nabi Shaikh v. State of Maharashtra
and Another ((2024) SCC OnLine SC 1693), after
surveying the case law on bail has observed as follows:
"19. If the State or any prosecuting agency
including the court concerned has no wherewithal to
provide or protect the fundamental right of an accused
to have a speedy trial as enshrined under Article 21 of
the Constitution then the State or any other
prosecuting agency should not oppose the plea for bail
on the ground that the crime committed is serious.
Article 21 of the Constitution applies irrespective of
the nature of the crime."
12. 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 petitioners have been in judicial custody for the
last more than five months, the investigation in the case
is complete, the final report has been laid and the
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petitioners do not have any criminal antecedents, I am of
the firm view that the petitioners are entitled to be
enlarged on bail subject to stringent conditions.
In the result, the application is allowed, by
directing the petitioners to be released on bail on them
executing a bond for Rs.1,00,000/- (Rupees One lakh
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 petitioners shall appear before the
Investigating Officer on every third Saturday
between 9 a.m. and 11 a.m till the conclusion of
the trial in Crime No.213/2024.
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;
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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. The petitioners shall not leave the territorial
jurisdiction of the Court of Session,
Thiruvananthapuram without the previous
permission of the jurisdictional court.
vi. 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.
vii. Application for deletion/modification of the bail
conditions shall be moved and entertained by the
court below.
viii. 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
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Sushila Aggarwal v. State (NCT of Delhi) and
another [2020 (1) KHC 663].
sd/-
C.S.DIAS,JUDGE
rkc/03.09.24
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APPENDIX OF BAIL APPL. 6481/2024
PETITIONER ANNEXURES
Annexure 1 ORDER DATED 06-06-2024 IN BAIL
APPL.2586/2024 ON HIGH COURT
Annexure 2 TRUE COPY OF THE FIR AND FIS OF THE
DECEASED IN CRIME NO.213/2024 OF
KALLAMBALAM POLICE STATION
Annexure 3 TRUE COPY OF THE DYING DECLARATION OF
THE DECEASED
Annexure 4 TRUE COPY OF THE ACCIDENT-CUM-WOUND
CERTIFICATE ISSUED FROM MEDICAL COLLEGE
HOSPITAL, PARIPPALLY, KOLLAM ON
20.02.2024
Annexure 5 TRUE COPY OF THE REMAND APPLICATION OF
THE INVESTIGATING OFFICER AFTER
ARRESTING THE PETITIONERS
Annexure 6 THE POST MORTEM CERTIFICATE OF THE
DECEASED ISSUED FROM THE MEDICAL COLLEGE
HOSPITAL, THIRUVANANTHAPURAM DATED
26.02.2024
Annexure 7 TRUE COPY OF THE STATEMENT OF THE
DOCTOR, WHO CONDUCTED POST MORTEM DATED
22.03.2024
Annexure 8 TRUE COPY OF THE ORDER OF THE SESSIONS
COURT, THIRUVANANTHAPURAM IN CRL.MP
NO.3700/2024 IN S.C NO.1490/2024 DATED
27.07.2024
Annexure 9 TRUE COPY OF THE PLAINT DATED 19.08.2024
IN O.S.NO. 336 OF 2024 FILED BEFORE THE
MUNSIFF COURT, VARKALA
