Kerala High Court
Asaraudheen @ Achu vs State Of Kerala on 6 September, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:67694
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 6TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946
BAIL APPL. NO. 7079 OF 2024
CRIME NO.401/2024 OF GURUVAYOOR POLICE STATION, THRISSUR
AGAINST THE ORDER/JUDGMENT DATED 13.08.2024 IN CRMC
NO.1106 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THRISSUR
PETITIONERS:
1 ASARAUDHEEN @ ACHU
AGED 24 YEARS
S/O SAINUDHEEN, CHONDONAPARAMBIL HOUSE, MANATHALA
VILLAGE, VANCHIKADAVU, DESOM, CHAVAKKAD TALUK,
THRISSUR DISTRICT., PIN - 680506
2 FASAL
AGED 29 YEARS
S/O MUHAMMED KUNJE, PUTHUVEETTIL HOUSE, MANATHALA
VILLAGE, VANCHIKADAVU, DESOM, CHAVAKKAD TALUK,
THRISSUR DISTRICT., PIN - 680506
3 AJMAL
AGED 29 YEARS
S/O LAJU KURUP, PANIVEETTIL HOUSE, MANATHALA
VILLAGE, VANCHIKADAVU, DESOM, CHAVAKKAD TALUK,
THRISSUR DISTRICT., PIN - 680506
BY ADVS.
NANDAGOPAL S.KURUP
ADITH KIRAN R.S.
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
BAIL APPL. NO. 7079 OF 2024
2
2024:KER:67694
Dated this the 6th day of September, 2024
ORDER
The application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS', for
short) by the accused 1, 4 and 3 in Crime No.401/2024
of the Guruvayur Police Station, Thrissur, which is
registered against them for allegedly committing the
offences punishable under Sections 189(2) 191(2),
191(3), 329(3), 126(2), 118(1), 118 (2) r/w Section 190
of the Bharatiya Nyaya Sanhita, (for short, 'BNS'). The
petitioners were arrested and remanded to judicial
custody on 22.07.2024.
2.The concise case of the prosecution is that;
on 05.07.2024, at around 10:45 hours, the accused 1
to 4, in prosecution of their common intention,
trespassed into the compound of the Sreekrishna
Regency Hotel, near Guruvayur Private Bus stand,
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where the de facto complainant was working as a
Supervisor, and the accused attacked him. The first
accused hit him with an iron rod, and he suffered a
fracture. Thus, the accused have committed the above
offences.
3.Heard; Sri.Nandagopal S.Kurup, the learned
counsel appearing for the petitioners and
Sri.C.S.Hrithwik, the learned Senior Public
Prosecutor.
4.The learned counsel appearing for the
petitioners submitted that the petitioners are innocent
of the accusations levelled against them. There is no
material to substantiate that the petitioners have
committed the above offences. The Investigating
Officer has deliberately incorporated Section 118(2) of
the BNS to deny bail to the petitioners. In any given
case, the petitioners have been in judicial custody for
the last 46 days, the investigation in the case is
complete, recovery has been effected and the
petitioners do not have any criminal antecedents.
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Hence, the application may be allowed.
5. The learned Public Prosecutor seriously
opposed the application. He submitted that there are
incriminating materials to substantiate the petitioners
involvement in the crime. He made available the
Treatment Records of the injured issued by the
Government Medical College Hospital, Thrissur dated
16.07.2024, to substantiate that the injured suffered a
distal fracture of his left hand. He also stated the
petitioners are involved in another crime If the
petitioners are enlarged on bail, there is a likelihood
of them tampering with evidence and intimidating the
witnesses. Hence, the application may be dismissed.
6. The prosecution case is that, the accused
had assaulted the de facto complainant with dangerous
weapons and he suffered a fracture of his left hand.
The said allegation prima facie stands corroborated by
the treatment records referred to above. The fact
remains that the petitioners have been in judicial
custody for the last 46 days, the investigation in the
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case is complete, and the recovery has been effected.
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:
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"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 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,
the 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 46 days, the investigation
in the case is complete and the final report has been
laid, I am of the firm view that the petitioners' 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 petitioners to be released on bail on them
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executing a bond for Rs.50,000/- (Rupees fifty thousand
only) each 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 Saturday between 9
a.m. and 11 a.m till the conclusion of the trial in the
above crime. They shall also appear before the
Investigating Officer as and when required;
(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
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offence while they are on bail;
(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 passport, they
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 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
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
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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 Sushila
Aggarwal v. State (NCT of Delhi) and another
[2020 (1) KHC 663].
SD/-
C.S.DIAS, JUDGE
rmm/6/9/2024
