Ashwin Tom v. The Station House Officer, Hill Palace Police Station, Ernakulam District and State of Kerala

BA No.4438 of 2025 1 ``` 2025:KER:29435 ``` **==> picture [57 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` FRIDAY, THE 4[TH] DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4438 OF 2025 ``` ``` CRIME NO.124/2025 OF HILL PALACE POLICE STATION, ``` ## **`ERNAKULAM`** ## **`PETITIONER(S)/ACCUSED:`** ``` ASHWIN TOM ``` ``` AGED 29 YEARS, S/O TOM THOMAS , KOLASSERIYIL PANNIMATTOM P.O THODUPUZHA IDUKKI , KERALA, PIN - 685588 ``` ``` BY ADVS. BHAVANA K.K SUNNY MATHEW ``` ## **`RESPONDENT( S )/STATE:`** - **`1 THE STATION HOUSE OFFICER HILL PALACE POLICE STATION, ERNAKULAM DISTRICT, PIN - 682301`** - **`2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** ## **`BY ADV.:`** ## **`SR PP - NOUSHAD K A`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No.4438 of 2025 2 **==> picture [57 x 58] intentionally omitted <==** **==> picture [94 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> 2025:KER:29435<br>**----- End of picture text -----**<br> ## **P.V.KUNHIKRISHNAN, J. -------------------------------------------** ## **BA No.4438 of 2025** **-------------------------------------------Dated this the 04[th] day of April, 2025** ## **O R D E R** This bail application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. 2. Petitioner is an accused in Crime No.124/2025 of Hill Palace Police Station, Ernakulam. The above case is registered against the petitioner alleging offences punishable under Sections 117(2), 118(1), 118(2), 109 and 110 of the Bharatiya Nyaya Sanhita (BNS), 2023. 3. The prosecution case is that, on 10.08.2024 at 01.30 AM, the petitioner assaulted the BA No.4438 of 2025 3 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:29435 ``` defacto complainant and his friends and they sustained serious injuries including grievous hurt. Hence, it is alleged that the accused committed the offence. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the incident is not happened as alleged by the prosecution. The main case is registered by the Hill Palace Police Station as Crime No.636/2024, in which the petitioner sustained serious injuries including fracture. After registering Annexure-A2, the present crime is registered as Crime No.124/2025. The counsel also submitted that the petitioner is ready to abide any condition imposed by this Court, if this Court grant him bail. 6. The Public Prosecutor opposed the bail application. But, the Public Prosecutor submitted BA No.4438 of 2025 4 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:29435 ``` that, as per the report received by him from the Investigating Officer, no criminal antecedents is alleged against the petitioner. 7. This Court considered the contention of the petitioner and the Public Prosecutor. Admittedly, there is a case and a counter case. The main case is registered as Crime No.636/2024 as evident by Annexure-A2, in which the defacto complainant injured is the petitioner herein. The present case, in effect, a counter case which is registered as Crime No.124/2025. There are two versions about the same incident. Which version is correct cannot be decided in a bail application. In both cases, the offence under Section 118(2) is alleged. Considering the facts and circumstances of the case, I think, the petitioner can be released on bail after imposing stringent conditions. BA No.4438 of 2025 5 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:29435` 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. Recently the Apex Court in _**Siddharth v State of Uttar Pradesh and Another** [2021(5)KHC 353]_ considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder. “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation BA No.4438 of 2025 6 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:29435` becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.” ## 10. In _**Manish Sisodia v. Central Bureau of**_ _**Investigation** [2023 KHC 6961],_ the Apex Court observed that, even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. BA No.4438 of 2025 7 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:29435 ``` Considering the dictum laid down in the above decisions and considering the facts and circumstances of this case, this Bail Application is allowed with the following conditions: _1. The petitioner shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation._ _2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on 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 arresting officer concerned._ _3. The petitioner shall appear before the Investigating Officer for interrogation_ BA No.4438 of 2025 8 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:29435 ``` _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. Petitioner shall not leave India without permission of the jurisdictional Court._ _5. 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._ _6. The observations and findings in this order is only for the purpose of deciding_ BA No.4438 of 2025 9 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:29435 ``` _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._ _7. 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 petitioner even while the petitioner is 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]._ _8. If any of the above conditions are violated by the petitioner, the jurisdictional court can cancel the bail in_ BA No.4438 of 2025 10 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:29435 ``` _accordance to law, even though this bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if any of the above conditions are violated._ nvj **Sd/P.V.KUNHIKRISHNAN JUDGE**