C.S.Dias, J
1. The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( ‘the BNSS’ for short) 2023, by the accused 1, 3, 4 and
5 in Crime No. 636/2024 of the Hill Palace Police Station, Ernakulam, which is registered against nine accused persons for allegedly committing the
offences punishable under Sections 189(2), 191(2),296(b), 115(2) 118(2), 110 and 190 of the Bharatiya Nyaya Sanhita, 2023. The petitioners were
arrested on 11.8.2024.
2. The gist of the prosecution case is that: on 10.8.2024, at around 1.30 hours, the accused 1 to 8, in furtherance of their common intention, had formed
an unlawful assembly and decided to assault the de facto complainant because he had sent a whatsapp message to the girl friend of the first accused.
Accordingly, the first accused verbally abused the de facto complainant and accused 1 to 8 fisted him on his body. Then, one identifiable person beat
the de facto complainant on his face and back and he suffered a fracture on his upper and lower jaw and also five of his teeth got loosened. Thus, the
accused have committed the above offences.
3. Heard; Sri.G.Hariharan, the learned counsel appearing for the petitioners, Smt.M.K Pushpalatha, the learned Senior Public Prosecutor and Sri.Tom
Jose Padinjarekara, the learned counsel appearing for the de facto complainant/third respondent .
4. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. They have been falsely
implicated in the crime. The Investigating Officer has deliberately incorporated Secs.118(2) and 110, the two non-bailable offences, against the
petitioners. A reading of Annexure-IV remand report clearly substantiates that the specific overt act of committing the above offences is attributed
against the second accused, who allegedly assaulted the de facto complainant with a reaper and the de facto complainant suffered the above injuries.
In fact, in the said incident, the petitioners 1 and 2 have also suffered injuries as reflected from Annexures-I and II medical certificates. The
petitioners are law abiding citizens without any criminal antecedents. The petitioners have been in judicial custody for the last one month, the
investigation in the case, so far as the petitioners are concerned, is practically complete and recovery has been effected. Therefore, the petitioners
may be enlarged on bail.
5. The learned Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She also stated if the
petitioners are enlarged on bail, there is every likelihood of them intimidating the victim and witnesses and tampering with the evidence. Hence, the
application may be dismissed. Nonetheless, she did not dispute the fact that the specific overt act of assaulting the de facto complaint so as to attract
the offences under Secs.118(2) and 110 is attributed against the second accused.
6. The learned counsel for the third respondent also strenuously opposed the application. The third respondent has filed a bail objection report, inter
alia, contending that the accused have caused grievous injuries to the de facto complainant as evidenced from Annexure-1 discharge summary. He
stated that subsequent to the registration of the present crime, on 31.8.2024, the relatives of the first accused had trespassed into the house of the de
facto complainant and intimidated him. The Kanjar Police Station has registered Crime No.690/2024 against the relatives of the first accused for
allegedly committing the predicate offence under Secs.351(2) of the Indian Penal Code. If the petitioners are enlarged on bail, there is every likelihood
of them murdering the third respondent. Therefore, the application may be dismissed.
7. On a perusal of the materials on record, it can be gathered that the specific allegation against the petitioners is that the first petitioner abused the
third respondent in obscene language and all the accused fisted and kicked him. The specific overt act of causing grievous hurt is attributed against the
second accused as discernible from Annexure-IV remand report, which stands corroborated by the discharge summary of the third respondent. The
fact remains that, the petitioners have been in judicial custody for the last one month, the investigation in the case is practically complete and recovery
has been effected.
8. 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.
9. 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 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. â€
10. 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 one month, the investigation in the case is complete, recovery has been effected,
and furthermore, the petitioners do not have any criminal antecedents, I am of the view that the petitioners’ further detention is not necessary.
Hence, I am inclined to allow the bail application.
In the result, the application is allowed, by directing the petitioners to be released on bail on them 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 final report is laid. 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 offence while they are on bail;
(iv) The petitioners shall not enter the territorial jurisdiction of the Court of Session, Idukki, till the filing of the final report in the present crime.
(v) 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;
(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) Applications 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
Sushila Aggarwal v. State (NCT of Delhi) and Another [2020 (1) KHC 663].
