Kerala High Court
Shafees vs State Of Kerala on 28 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:26794
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947
BAIL APPL. NO. 4260 OF 2025
CRIME NO.81/2025 OF Hemambika Nagar Police Station, Palakkad
AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.2763
OF 2025 OF HIGH COURT OF KERALA
PETITIONER/S:
SHAFEES
AGED 32 YEARS
S/O.SHAJAHAN, SHAJITHA MANZIL, THAZHEMURALI,
INDUSTRIAL ESTATE, PUTHUPARIYARAM, PALAKKAD.,
PIN - 678731
BY ADV NIREESH MATHEW
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, KOCHI., PIN - 682031
SR PP-NOUSHAD K A
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.4260 of 2025
-------------------------------
Dated this the 28th day of March, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita (BNSS).
2. Petitioner is the first accused in Crime
No.81/2025 of Hemambika Nagar Police Station, Palakkad.
The above case was originally registered under Section 194 of
the BNSS. Subsequently, the offence under Sections 108 r/w
3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023 is added.
Petitioner was arrested on 12.02.2025 and he is in custody.
3. The prosecution case is that, the first accused
had illicit relationship with the second accused. The second
accused continuously threatened the deceased to leave from
the life of the first accused. It is alleged that on 04.02.2025 at
about 10:00 a.m., there were quarrel between the first
accused and the deceased due to the illicit relationship
between the accused persons. It is further alleged that, due to
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same, the deceased committed suicide on 05.02.2025.
Hence, it is alleged that the petitioner and other accused
instigated the deceased, to commit suicide. Hence, it is
alleged that the accused committed the offence.
4. Heard counsel for the petitioner and the
Public Prosecutor.
5. The counsel for the petitioner submitted that,
even if the entire allegations are accepted, ingredients of
Section 108 of BNS is not attracted. The counsel submitted
the petitioner is in custody from 12.02.2025 and petitioner is
ready to abide by any conditions, if this Court grants him bail.
6. Public Prosecutor opposed the bail
application. He submitted that, a perusal of the prosecution
case itself would show that the ingredients of Section 108 of
BNS is attracted. He also submitted that, the petitioner may
not be released on bail at this stage.
7. This Court considered the contentions of the
petitioner and the Public Prosecutor. It is true that the
allegations against the petitioner is very serious. But, the
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petitioner is in custody from 12.02.2025. Petitioner earlier
filed a bail application before this Court as B.A No.2763/2024.
After hearing both sides, this Court was not inclined to grant
bail, considering the seriousness of the case. At that stage,
the counsel for the petitioner sought permission to withdraw
the bail application and move it again. Accordingly, the
present bail application is filed. Considering the facts and
circumstances of the case, I think, the petitioner can be
released on bail after imposing stringent conditions.
8. 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.
9. Moreover, in Jalaluddin Khan v. Union of
India [2024 KHC 6431], the Hon'ble Supreme Court
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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 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
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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)
10. 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.
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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 trial courts
and the High Courts should recognize the
principle that "bail is rule and jail is
exception".
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
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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 her from disclosing 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. The observations and findings in this
order is only for the purpose of deciding this
bail application. The principle laid down by
this Court in Anzar Azeez v. State of
Kerala [2025 SCC OnLine KER 1260] is
applicable in this case also.
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6. 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
SSG
