Kerala High Court
Mubarak S vs State Of Kerala on 21 January, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BAIL APPL. NO. 680 OF 2025 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 21ST DAY OF JANUARY 2025 / 1ST MAGHA, 1946
BAIL APPL. NO. 680 OF 2025
CRIME NO.713/2024 OF RAILWAY POLICE STATION ERNAKULAM,
Ernakulam
PETITIONER/S:
MUBARAK S
AGED 29 YEARS
S/O SAIFUDHEEN, MAJITHA MANZIL,KUZHIYAM,
CHANDHANATHOPE PO PEINADU KOLLAM, PIN - 691014
BY ADV SREERAJ M.D.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 STATION HOUSE OFFICER
RAILWAY POLICE STATION ERANAKULAM REPRESENTED BY ITS
STANDING COUNSEL HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
SRI.NOUSHAD.K.A, SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
21.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 680 OF 2025 2
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P.V.KUNHIKRISHNAN, J
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B.A. No. 680 of 2025
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Dated this the 21st day of January, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita.
2. The petitioner is an accused in Crime No.
713/2024 of Railway Police Station, Ernakulam. Thereafter,
the case is re-registered as Crime No.835/2024 of Railway
Police Station, Kozhikode. The above case is registered against
the petitioner alleging offence punishable under Sec.75(1)(i) of
the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS').
3. The prosecution case is that on 29.12.2024 at
6.45 am, while the defacto complainant was travelling in train
No. 19578, Thirunelveli Express from Kannur to Ernakulam
and when the train reached before Tirur Station, the accused,
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who was standing near the defacto complainant rubbed his
genital part on the shoulder of the defacto complainant and
thereby outraged her modesty.
4. Heard the learned counsel for the petitioner
and the learned Public Prosecutor.
5. The counsel for the petitioner submitted that
the petitioner is in custody from 29.12.2024. The counsel for
the petitioner submitted that the petitioner is ready to abide
any conditions, if this Court grants him bail. The Public
Prosecutor opposed the bail application.
6. The petitioner is in custody from 29.12.2024.
The maximum punishment that can be given for the offence
under Sec.75(1)(i) BNS is three years. It is true that the
allegation against the petitioner is serious. But considering the
facts and circumstances of this case and also considering the
fact that the petitioner is in custody from 29.12.2024, the bail
can be granted to the petitioner, after imposing stringent
conditions.
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7. Moreover, it is a well accepted principle that
the bail is the rule and the jail is the exception. The Hon'ble
Supreme Court in Chidambaram. P v Directorate of
Enforcement [2019 (16) SCALE 870], after considering all
the earlier judgments, observed that, the basic jurisprudence
relating to bail remains the same inasmuch as the grant of bail
is the rule and refusal is the exception so as to ensure that the
accused has the opportunity of securing fair trial.
8. Moreover, in Jalaluddin Khan v. Union of
India [2024 KHC 6431], the Hon'ble Supreme Court
observed that:
"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
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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 Art.21
of our Constitution." (underline supplied)
9. In Manish Sisodia v. Directorate of
Enforcement [2024 KHC 6426], also the Hon'ble Supreme
Court observed that:
"53. The Court further 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 our
experience, we can say that 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 a
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, this Court is
flooded with huge number of bail petitions thereby
adding to the huge pendency. It is high time that the
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trial courts and the High Courts should recognize the
principle that "bail is rule and jail is exception"."
10. Considering the dictum laid down in the above
decision and considering the facts and circumstances of this
case, this Bail Application is allowed with the following
directions:
1. Petitioner shall be released on bail on
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
jurisdictional Court.
2. The petitioner shall appear before the
Investigating Officer for interrogation as and
when required. The petitioner shall co-operate
with the investigation and shall not, directly or
indirectly make any inducement, threat or
promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing
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such facts to the Court or to any police officer.
3. Petitioner shall not leave India without
permission of the jurisdictional Court.
4. Petitioner shall not commit an offence
similar to the offence of which he is accused, or
suspected, of the commission of which he is
suspected.
5. If any of the above conditions are
violated by the petitioner, the jurisdictional
Court can cancel the bail in accordance to law,
even though the bail is granted by this Court.
The prosecution and the victim are at liberty to
approach the jurisdictional court to cancel the
bail, if there is any violation of the above
conditions.
sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
