Badusha, Prithin Rajan, and Syam Kumar M S v State of Kerala and The Station House Officer, Sasthamcotta Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 04TH DAY OF MAY 2021 / 14TH VAISAKHA, 1943** ## **Bail Appl..No.3095 OF 2021** **CRIME NO.221/2021 OF Sasthamcotta Police Station , Kollam** ## **PETITIONER/S:** |**1**|**BADUSHA**| |---|---| ||**AGED 25 YEARS**| ||**SON OF SHAJAHAN, MULAKKAITHEKKATHIL,**| ||**PALLISSERIKKAL, SASTHAMCOTTA VILLAGE**| ||**690521**| |**2**|**PRITHIN RAJAN**| ||**AGED 27 YEARS**| ||**SON OF RAJAN, PREEMA BHAVAN, PALLISSERIKKAL,**| ||**SASTHAMCOTTA VILLAGE,**| ||**690521**| |**3**|**SYAM KUMAR M S**| ||**AGED 25 YEARS**| ||**SON OF SATHYAN, SYAM NIVAS,**| ||**PALLISSERIKKAL, SASTHAMCOTTA VILLAGE,**| ||**690521**| ||**BY ADV. SRI.P.V.DILEEP**| |**RESPONDENT/S**<br>**:**|| |**1**|**STATE OF KERALA**| ||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT**| ||**OF KERALA**| ||**682031**| |**2**|**THE STATION H OUSE OFFICER**| ||**OFFICE OF THE SASTHAMCOTTA POLICE STATION,**| ||**SASTHAMCOTTA, SASTHAMCOTTA P O,**| ||**690521**| B.A.No.3095/2021 ..2.. ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SR.P.P.SRI.C.N.PRABHAKARAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.05.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.3095/2021 ..3.. ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.3095 of 2021 ------------------------------Dated this the 4[th] day of May, 2021 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference. 2. The petitioners are the accused in Crime No.221/2021 of Sasthamacotta Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 143,147, 148, 294(b), 323, 324, 308 r/w 34 of Indian Penal Code. 3. The prosecution case is that on 28.02.2021 at 10.30 pm while the defacto complainant's friend named Mony asked about the assault sustained to one Mr. Jayan and at that time, the 2[nd] accused in the crime used abusive words and assaulted B.A.No.3095/2021 ..4.. him with his right hand. It is alleged that the accused assaulted the injured and they sustained injury. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. The counsel for the petitioners submitted that it is a case and counter case. Annexure-1 is the FIR in this case and Annexure-3 is the FIR in the counter case. The counsel submitted that Annexure A-3 FIR was registered first and subsequently Annexure 1 FIR is registered. The learned counsel submitted that it is an incident occurred in connection with a temple festival. The Public Prosecutor opposed the Bail Application. 5. After hearing both sides, I think that this Bail Application can be allowed on stringent conditions. There are allegations and counter allegations about the same incident. Two cases are registered based on the version of the petitioners and the defacto complainant. While considering the bail application under Section 438 CrPC, this Court cannot consider the correctness of the version given by the parties. Considering the entire facts and circumstances of the case, B.A.No.3095/2021 **==> picture [17 x 8] intentionally omitted <==** this Bail Application can be allowed on stringent conditions. 6. Moreover, the 2[nd] wave of COVID-19 is spreading in the country and the citizens are facing serious difficulties. In the state of Kerala, the 2[nd] wave of the pandemic is creating lot of problems and even the day-to-day life of the citizens are affected. Everyday, about 25,000 people are tested positive with COVID-19. In such circumstances, this Court has to consider this fact also while considering bail applications. The life is more important than anything. Therefore, I am considering this bail application based on the above pandemic situation. 7. 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. These happened during the 1[st] wave of COVID-19 season. B.A.No.3095/2021 ..6.. 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. 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 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 on B.A.No.3095/2021 ..7.. 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 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 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 B.A.No.3095/2021 ..8.. 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; 7. If any of the above conditions are violated by the petitioner,s the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- **P.V.KUNHIKRISHNAN JUDGE** kkj