Allowed bail under Section 438 CrPC to petitioners accused of affray and grievous hurt, emphasizing that bail is the rule and considering social distancing norms and pending counter-cases.
Bail allowed on conditions including appearance before IO within 10 days, execution of bond for Rs. 50,000 with sureties, and adherence to social distancing norms.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942
Bail Appl..No.1515 OF 2020
CRIME NO.171/2020 OF KAREELAKULANGARA POLICE STATION , ALAPPUZHA DISTRICT.
PETITIONERS:
1 SHAIJU @ SAJU, AGED 38 YEARS
S/O. BABU, KOCHU PARAMBIL, PATHIYOOR EAST, PATHIYOOR VILLAGE.
2 SARATH @ JITHU
AGED 35 YEARS
S/O. SOMARAJAN, SHOBHALAYAM, ERUVA EAST, ERUVA P. O., PATHIYOOR VILLAGE.
BY ADV. SRI.K.R.SUNIL
RESPONDENT:
THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY SRI.SANTHOSH PETER, SR.GP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A. NO.1515 OF 2020 2
O R D E R
Dated this the 20th day of August 2020
This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.
2. The petitioners are the accused in Crime No.171 of 2020 of Kareelakulangara Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 294(b), 323, 341, 324, 308 r/w. Section 34 of the Indian Penal Code (IPC).
3. The prosecution case is that, on 15.2.2020
at about 5 p.m., the petitioners attacked one Reji Kumar with dangerous weapons in connection with a pathway dispute.
4. Heard the learned counsel for the
petitioners and the learned public prosecutor.
5. The learned counsel for the petitioners
B.A. NO.1515 OF 2020 3
submitted that, it is a case and counter case. The counsel submitted that, the petitioners produced Annexure A1 and Annexure A2 F.I.Rs. in Crime Nos. 171 of 2020 and 164 of 2020 of Kareelakulangara Police Station. The F.I.R. in the present case is Annexure A1. The counter case is registered at first because the number of the counter case is 164
of 2020 and the present case is 171 of 2020. The offence alleged in Annexure A2 F.I.R includes an offence under Section 326 IPC. Of course, there is an offence under Section 308 IPC in Annexure A1
F.I.R. also. The counsel submitted that, the petitioners are ready to abide any conditions, if this Court is granting bail to the petitioners.
6. The learned public prosecutor opposed this bail application. The public prosecutor submitted that, the injured sustained very serious injury. The public prosecutor submitted that, the presence of the petitioners are necessary for completing the investigation.
7. After hearing both sides, I think, this
B.A. NO.1515 OF 2020 4
bail application can be allowed, on stringent conditions. There is allegation and counter allegation about the same incident. The injured in both cases sustained injury. Annexure A1 is the F.I.R in the present case and Annexure A2 is the F.I.R. in the other case. The counsel for the petitioners submitted that, there is a dispute with respect of a pathway and there is a civil suit is also pending. I do not want to make any observation about the merit of this case. The alleged incident happened on 15.2.2020. This bail application is pending before this Court from 25.2.2020. There is an interim order restraining the Police in arresting the petitioners for a period of two weeks from 19.3.2020. At this distance of time, it is improper to send the petitioners to jail. The petitioners can be directed to co-operate with the investigation.
8. Moreover, considering the need to follow
social distancing norms inside prisons so as to avert the spread of the novel Corona Virus
B.A. NO.1515 OF 2020 5
Pandemic, the Hon'ble Supreme Court in Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench of this Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons.
9. 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.
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. The petitioners shall appear
B.A. NO.1515 OF 2020 6
before the Investigating Officer within ten days from today and shall undergo interrogation;
2. After interrogation, if the Investigating Officer proposes to arrest the petitioners, they shall be released on bail executing a bond
for a sum of Rs.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned;
3. The petitioners shall appear before the Investigating Officer
for interrogation as and when required. The petitioners shall cooperate 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
B.A. NO.1515 OF 2020 7
dissuade him from disclosing such facts to the Court or to any police
officer;
4. The petitioners shall not leave India without permission of the Court;
5. The petitioners shall not
commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected;
6. The petitioners shall
strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic;
conditions are violated by the petitioners, the jurisdictional
B.A. NO.1515 OF 2020 8
Court can cancel the bail in accordance to law, even though the bail is granted by this Court.
Sd/-
P.V.KUNHIKRISHNAN
pkk
JUDGE
2 issues framed by the court
Whether bail can be allowed to the accused under stringent conditions in a case involving affray and grievous hurt with a counter-case pending.
Whether the grant of bail is appropriate considering the principle that bail is the rule and jail is the exception in the light of the pandemic.
Colour shows how this judgement treated each authority
Re: Contagion of COVID-19 Virus In PrisonsReferred¶39
Re: Contagion of COVID-19 Virus In Prisons (Suo Motu Writ Petition(C) No.1 of 2020)
Chidambaram P. v. Directorate of EnforcementExplained¶40
Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870)
1 provisions across 1 enactments
SHAIJU @ SAJU
SARATH @ JITHU
THE STATE OF KERALA
P.V. KUNHIKRISHNAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
