High Court of KeralaSingle Judge2020-07-17B.A. No.1956 of 2020 dismissed; B.A. No.1967 of...

Bail Applications Nos.1956/2020 & 1967/2020 vs. State of Kerala

Case / Petition Number:BA Nos.1956/2020 and 1967/2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-07-17
Court Decision / Holding: B.A. No.1956 of 2020 is dismissed. B.A. No.1967 of 2020 is allowed with conditions: accused Nos. 2 and 4 to appear before the Investigating Officer within ten days and undergo interrogation; if indicated, release on bail on bond Rs.50,000 with two solvent sureties; appearance as required; comply with COVID-19 guidelines; breach may lead to cancellation.
Final Disposition: B.A. No.1956 of 2020 dismissed; B.A. No.1967 of 2020 allowed with conditions as specified (appearance before IO within ten days, bond of Rs.50,000 with two sureties, cooperation, and compliance with COVID-19 guidelines).

Parties to the Case

Appellants / Petitioners

Akhil (1st accused)
Pranav (2nd accused)
Christo (4th accused)

Respondents

The State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam-682031

Legal Representation & Advocates

Counsels for Petitioners

• C. A. Chacko
• C. M. Charisma

Counsels for Respondents

• Public Prosecutor, State of Kerala
• Sri. T. R. Renjith, PP

Case Synopsis & Summary

Two bail petitions were heard by a single judge of the Kerala High Court challenging the Sessions Court Thrissur’s order in Crime No. 88/2020 arising from Wadakkanchery Police Station. Accused Nos. 1 to 4 — Akhil, Pranav, and Christo (and others) — were charged under IPC sections including 143, 147, 148, 341, 323, 324 and 308 in combination with 149. The prosecution alleges that on 18 February 2020, the accused forcibly restrained the de facto complainant and assaulted him with dangerous weapons, resulting in serious injuries; the 1st accused faces the more serious allegation including potential fatal injury. The petitioners argued the incident did not occur as alleged and, even accepting the prosecution case, no offence under 308 IPC could be made out; they also claimed there was no specific overt act by accused Nos. 2 and 4. The Public Prosecutor contended that the injuries were serious and that Section 34 IPC would apply to all accused due to joint liability. The judge, applying the principle that bail is the rule and jail the exception, dismissed BA-1956 and allowed BA-1967 for accused Nos. 2 and 4 with conditions: appearance before the IO within ten days, bond for Rs.50,000 with two sureties, and strict compliance with witnesses, along with COVID-19 safety measures. Social distancing directives from Supreme Court and Kerala Full Bench were cited to guide custody considerations.

Provisions of Law Cited

Section 438 Cr.P.C.Sections 143, 147, 148, 341, 323, 324, 308 r/w 149 IPCSection 34 IPC

Legal Doctrines & Maxims

Bail is the rule and jail is the exception.
Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870) – basic bail jurisprudence emanating the rule

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the incident did not happen as alleged; even if the prosecution case is accepted, no offence under Section 308 IPC is made out; there is no specific overt act against petitioners in BA 1967 (accused Nos. 2 and 4).

Contentions of Respondents

The Public Prosecutor opposed bail, arguing that the injured sustained serious injuries; the accused persons’ names are in the F.I. statement; simply because the 1st accused inflicted the fatal injury, Section 34 IPC applies and the accused cannot be granted bail under the circumstances.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Establishes bail as a rule and jail as an exception as a binding principle in bail jurisprudence.
Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition(C) No.1 of 2020	Mentioned Only	Cited for social distancing and health guidelines in prisons during the pandemic.
W.P(C) No.9400 of 2020	W.P(C) No.9400 of 2020	Mentioned Only	Full Bench directions on minimizing inmate population and related COVID-19 precautions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 17TH DAY OF JULY 2020 / 26TH ASHADHA, 1942** ## **Bail Appl..No.1956 OF 2020** **AGAINST THE JUDGMENT IN CRL.MC 298/2020 OF THE SESSIONS COURT,THRISSUR CRIME NO.88/2020 OF Vadakkanchery Police Station , Thrissur** ## **PETITIONER/1ST ACCUSED :** **AKHIL AGED 21 YEARS S/O.SETHUMADHAVAN, MUTHIRIKKAPRAMBIL HOUSE, MANALITHARA VILLAGE AND POST, THALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680589.** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **OTHER PRESENT:** **SRI.T.R.RENJITH, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.07.2020, ALONG WITH Bail Appl..1967/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A. Nos.1956 & 1967 of 2020 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 17TH DAY OF JULY 2020 / 26TH ASHADHA, 1942** **Bail Appl..No.1967 OF 2020** **AGAINST THE JUDGMENT IN CRL.MC 298/2020 DATED 09-03-2020 OF THE SESSIONS COURT,THRISSUR** **CRIME NO.88/2020 OF Vadakkanchery Police Station , Thrissur** ## **PETITIONERS/ACCUSED NOS.2 AND 4:** **1 PRANAV AGED 21 YEARS S/O.PRADEEP, KINAYATH HOUSE, MANALITHARA VILLAGE, THALAPPILLY TALUK, THRISSUR-680589. 2 CHRISTO AGED 21 YEARS S/O.WILSON @ DEVASSY, NELANKAVIL HOUSE, MANALITHARA VILLAGE, THALAPPILLY TALUK, THRISSUR-680589.** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.07.2020, ALONG WITH Bail Appl..1956/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A. Nos.1956 & 1967 of 2020 3** ## **O R D E R** These Bail Applications filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioners in the above two Bail Applications are the accused in Crime No. 88 of 2020 of Wadakkanchery Police Station, Thrissur District registered alleging offences punishable under Sections 143, 147, 148, 341, 323, 324, 308 r/w. Section 149 of the Indian Penal Code (IPC). 3.The prosecution case is that, on 18.2.2020 at 3.30 p.m., the accused persons wrongfully restrained the de facto complainant and inflicted injury on the de facto complainant using dangerous weapons. 4. The counsel for the petitioner submitted that, the incident is not happened as alleged by the prosecution. The counsel submitted that even if the entire prosecution case are accepted, no offence under Section 308 IPC is made out. The learned counsel also submitted that there is no specific ## **B.A. Nos.1956 & 1967 of 2020 4** overt act against petitioenrs in B.A. No. 1967 2020 who are accused Nos.2 and 4. 5. The learned Public Prosecutor opposed the Bail Application. 6. The learned Public Prosecutor submitted that, the injured in this case sustained very serious injury. The name of the petitioners are mentioned in the F.I. statement. Simply because the 1[st] accused inflicted the fatal injury, the others cannot escape from law because Section 34 IPC is there. 6. After hearing both sides, I think, the 1[st] accused who is the petitioner in B.A. No.1956 of 2020 is not entitled the orders under Section 438 Cr.P.C. 7. According to the learned counsel for the petitioners, it is case and a counter case and the counter case is registered as Crime No.94 of 2020. The counsel submitted that the incident is not as alleged by the prosecution. But it is a fact that the allegation against the 1[st] accused is that he used dangerous weapon and assaulted the injured and the injured sustained head injury. But it is to be noted that, the ## **B.A. Nos.1956 & 1967 of 2020 5** allegation against accused numbers 2 and 4 are not serious. According to the prosecution, they assaulted the injured using their hands. Considering the facts and circumstances of the case, I think, accused Nos. 2 and 4, who are the petitioners in B.A. No. 1967 of 2020 can be granted bail under Section 438 Cr.PC and petitioner in B.A. No.1956 of 2020 is not entitled bail under Section 438 Cr.PC. Hence the Bail Application of the petitioners in B.A. No. 1967 of 2020 is allowed and Bail Application of the petitioner in B.A. No.1956 of 2020 is dismissed. 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. 9. Moreover, it is a well accepted principle that the bail is ## **B.A. Nos.1956 & 1967 of 2020 6** 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, the Bail Application of the petitioners in B.A. No.1967 of 2020 is allowed with the following directions: 1. The petitioners in B.A. No.1967 of 2020 shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners in B.A. No.1967 of 2020, they shall be released on bail executing a bond ## **B.A. Nos.1956 & 1967 of 2020 7** 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 in B.A. No.1967 of 2020 shall appear before the Investigating Officer as and when required. The petitioners shall co-operate with the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence. 4. The petitioners in B.A. No.1967 of 2020 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. 5. If any of the above conditions are violated by the above petitioners, the jurisdictional Court can cancel the bail in ## **B.A. Nos.1956 & 1967 of 2020 8** accordance to law, even though the bail is granted by this Court. B.A. No.1956 of 2020 is dismissed. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** ## **pkk**