Kerala High Court
Muhammed Asif K R vs State Of Kerala on 15 October, 2024
Author: C.S.Dias
Bench: C.S.Dias
B.A.NO.8270 OF 2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 15TH DAY OF OCTOBER 2024 / 23RD ASWINA, 1946
BAIL APPL. NO. 8270 OF 2024
CRIME NO.776/2024 OF KUNNATHUNADU POLICE STATION,
ERNAKULAM
AGAINST THE ORDER/JUDGMENT DATED 30.09.2024 IN CRMC
NO.80 OF 2024 OF ADDITIONAL DISTRICT & SESSIONS COURT
(POCSO), MUVATTUPUZHA
PETITIONERS/ACCUSED 1 TO 3:
1 MUHAMMED ASIF K R ,
AGED 21 YEARS
S/O. RAFEEQ, KUTTIKATTIL HOUSE, PERINGALA,
KUNNATHUNADU, ERNAKULAM, PIN - 683565
2 MUHAMMED IRFAN P S
AGED 20 YEARS
S/O. SHAMSUDHEEN PONKATTIL KOTTANKAVU
CHALIKKAVATTOM VENNALA, ERNAKULAM, PIN - 682028
3 ADNAN P N
AGED 20 YEARS
S/O. NAZEER, POTTAPARMBIL HOUSE, PERINGALA,
KUNNATHUNADU, ERNAKULAM, PIN - 683565
BY ADVS.
SRI.K.Y.SAJEEB
SMT.SHEEJA K.Y.
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RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY SR PP SRI C S HRITHWIK
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
15.10.2024, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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ORDER
Dated this the 15th day of October, 2024 The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the accused 1 to 3 in Crime No.776/2024 of the Kunnathunadu Police Station, Ernakulam, which is registered against four accused persons for allegedly committing the offences punishable under Sections 332(c), 351, 296(b), 115(2), 74, 75(l)(i), 78 and 79 r/w Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 and Section 8 r/w 7 of the Protection of Children from Sexual Offences Act. The petitioners were remanded to judicial custody on 27.08.2024.
2. The prosecution case, in brief, is that; on 26.08.2024, at around 12:00 hours, the accused, in furtherance of their common intention, trespassed into the house of the survivor and shouted obscene words at her. Then, the 1st accused with an intention to B.A.NO.8270 OF 2024 4 2024:KER:76305 outrage the modesty of the survivor, caught hold of her neck and held her close to his body. When the survivor attempted to escape from the clutches of the 1st accused, accused 1 to 3, caused hurt to her. The accused 1 to 3 went along with the 4 th accused (a child in conflict with law) committed the above offences. Thus, the accused have committed the above offences.
3. Heard; Sri. K.Y.Sajeeb, the learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.
4. The learned counsel appearing for the petitioners submitted that the petitioners are innocent of the accusations levelled against them. There is no material to substantiate the petitioners' involvement in the crime. The Investigating Officer has deliberately incorporated Sections 115(2) and 74 to 79 of the BNS to see that the petitioners are arrested and incarcerated. The petitioners are all young students B.A.NO.8270 OF 2024 5 2024:KER:76305 without any criminal antecedents. In fact, the 4 th accused was assaulted by the father of the survivor and he suffered a fracture. The petitioners have been in judicial custody for the last 50 days, the investigation in the case is complete, the recovery has been effected and the petitioners do not have any criminal antecedents. Hence, the application may be allowed.
5. The learned Public Prosecutor seriously opposed the application. He submitted that the investigation in the case is in progress. He also stated that if the petitioners are enlarged on bail, there is every likelihood of them intimidating the survivor and tampering with the evidence. Hence, the application may be dismissed. Nonetheless, he made available the medical records of the survivor to substantiate that she had a mild contusion over the right side of her neck.
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6. The prosecution allegation is that, the petitioners, along with the child in conflict with law, had trespassed into the house of the survivor and caused hurt to her. The fact remains that the petitioners have been in judicial custody for the last 50 days, the investigation in the case is practically complete, and recovery has been effected. Furthermore, the petitioners do not have any criminal antecedents.
7. 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 B.A.NO.8270 OF 2024 7 2024:KER:76305 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.
8. 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. "B.A.NO.8270 OF 2024 8
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10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on comprehending the fact that the petitioners have been in judicial custody for the last 50 days, the investigation in the case is practically complete, recovery has been effected and prima facie, the survivor has not suffered any serious injuries, I am of the firm view that the petitioners are entitled to be enlarged on bail. Hence, I am inclined to allow the bail application, but subject to stringent conditions.
In the result, the application is allowed, by directing the petitioners to be released on bail on them executing a bond for Rs.1,00,000/- (Rupees one lakh 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:
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(i) The petitioners shall appear before the Investigating Officer on every second and fourth Saturday between 9 a.m. and 11 a.m till the filing of the charge sheet. They shall also appear before the Investigating Officer as and when directed.
(ii) The petitioners shall not directly or indirectly make any inducement or threat to the victim or her witnesses or 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;B.A.NO.8270 OF 2024 10
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(iv) 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;
(v) 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.
(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.
(vii) Needless to mention, it would be well within the powers of the Investigating Officer to B.A.NO.8270 OF 2024 11 2024:KER:76305 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].
(viii) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case, which shall be decided by the competent Court.
Sd/-
C.S.DIAS JUDGE NAB