Kerala High Court
Shahansha K.S vs The State Of Kerala on 11 September, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942
Bail Appl..No.1671 OF 2020
CRIME NO.3038/2019 OF KAYAMKULAM POLICE STATION , ALAPPUZHA
DISTRICT
PETITIONER/1ST ACCUSED:
SHAHANSHA K.S.
S/O. SHAHUL HAMEED, AGED 17, VELUTHIDATH
PADEETTATHIL, KEERIKKADU SOUTH, KEERIKKADU VILLAGE,
KAYAMKULAM, REPRESENTED IN THIS PROCEEDINGS BY HIS
FATHER AND GUARDIAN SHAHUL HAMEED, S/O. UMMERKUTTY,
AGED 49, VELUTHIDATH PADEETTATHIL, KEERIKKADU SOUTH,
KEERIKKADU VILLAGE, KAYAMKULAM.
BY ADV. SRI.K.R.SUNIL
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA
REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN-682 031.
BY SRI.AJITH MURALI, PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
11.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A. NO.1671 OF 2020 2
O R D E R
Dated this the 11th day of September 2020 ...
This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.
2. The petitioner is the accused in Crime No. 3038 of 2019 of Kayamkulam Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 143, 147, 148, 149, 323, 324, 427 r/w. Section 149 of the Indian Penal Code (IPC). An offence under Section 27 of the Arms Act is aslso alleged against the petitioner.
3. The prosecution case is that, on 8.12.2019 at about 2.50 p.m., the petitioner and other accused came in a motor bike and car and attacked the defacto complainant with an iron rod and the other accused attacked the defacto complainant with sword and slapped. It is also alleged that, the defacto complainant lost an amount of Rs.10,000/-
4. Heard the learned counsel for the B.A. NO.1671 OF 2020 3 petitioner and the learned public prosecutor.
5. The learned counsel for the petitioner submitted that, the allegation against the petitioner is not correct. The counsel submitted that, the only non bailable offence alleged against the petitioner is under Section 27 of the Arms Act. The counsel submitted that, as per the decision of this Court in In Stephen v. State of Kerala [2018 (3) KLT 920], it is stated that, acquisition, possession or carrying arms can be prohibited only under a notification issued under Section 4 of the Arms Act. According to the counsel, no such notification has been issued in this case. The counsel submitted that, the petitioner is a minor.
6. The learned Public Prosecutor, even though opposed this bail application, submitted that, if this Court is granting bail to the petitioner, the same may be on stringent conditions.
7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. The only non bailable offence alleged B.A. NO.1671 OF 2020 4 against the petitioner is under Section 27 of the Arms Act. Whether an offence under Section 27 of the Arms Act is made out or not is a matter to be investigated by the investigating officer. I do not want to make any observation about the merit of this case. Considering the entire facts and circumstances of this case, this bail application is allowed, on stringent conditions. If the petitioner is a juvenile, the investigating officer can do the needful in accordance to law. The petitioner should produce document to show that, he is a minor at the time of his surrender.
8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus 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.
B.A. NO.1671 OF 2020 5
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 petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation;
2. After interrogation, if the Investigating Officer proposes to arrest the petitioner, he shall be B.A. NO.1671 OF 2020 6 released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned;
3. 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 such facts to the Court or to any police officer;
4. The petitioner shall not leave India without permission of the Court;
5. The petitioner shall not B.A. NO.1671 OF 2020 7 commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected;
6. The petitioner 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;
7. 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.
Sd/-
P.V.KUNHIKRISHNAN
pkk JUDGE