Divin v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V. Kunhikrishnan
Judgment Date: 2020-08-10
Court Decision / Holding: This Bail Application is allowed with stringent conditions. The petitioner is to appear for interrogation within 10 days, may be released on bail on a bond of Rs. 50,000 with two solvent sureties of like amount, must co-operate with investigation, shall not leave India without court permission, shall not commit similar offences, and must comply with COVID-19 social distancing guidelines. Any violation can lead to cancellation of bail. The court cites COVID-19 related resolutions and bail jurisprudence (Chidambaram) to justify the decision.
Final Disposition: Bail granted to the petitioner with stringent conditions as set out in the order.

Parties to the Case

Appellants / Petitioners

Divin

Respondents

The State of Kerala, rep. by the Public Prosecutor, High Court of Kerala, Ernakulam
Ajith Murali, PP

Legal Representation & Advocates

Counsels for Petitioners

• Sri. C. Dinesh (Adv.)

Counsels for Respondents

• Sri. Ajith Murali, PP

Case Synopsis & Summary

Divin, a 21-year-old resident of Moorkkanad in Malappuram, seeks anticipatory (bail) under Section 438 CrPC in Crime No. 40 of 2020 at Kolathur Police Station. The prosecution alleges that on 1 March 2020, around 7:15 PM, a group of 16 persons formed an unlawful assembly on a public road, attacked the de facto complainant and friends with deadly weapons after sprinkling chili powder, resulting in eight injuries. The accused are charged with rioting with shared intent and offences including 143, 147, 148, 323, 324, 308, 506, 354 and 427 read with Section 149 IPC. The petitioner’s counsel contends the incident did not occur as alleged and, even if it did, offences under 308 IPC and 354 IPC are not made out; bail for non-bailable offences is sought. The Public Prosecutor opposes bail, highlighting injuries and the accused’s criminal antecedents. The court notes only contusions, no serious injuries, and that several prior cases against the second accused are alleged to be enmity-driven. After considering both sides, the court, citing COVID-19 guidelines and bail jurisprudence, allows the bail petition with stringent conditions: appearance for interrogation within 10 days, bond and two sureties, cooperation with investigation, no leaving India, avoidance of further offences, adherence to social distancing norms, and possible cancellation of bail if violated. The decision follows the principle that bail is the rule and imprisonment is the exception.

Provisions of Law Cited

Section 438 of the CrPCIPC Sections 143, 147, 148, 323, 324, 308, 506, 354 and 427 read with Section 149 IPC

Legal Doctrines & Maxims

Bail is the rule and jail is the exception; the accused should have opportunity for a fair trial.
The bail principles in Chidambaram v. Directorate of Enforcement are applicable to this case.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel submitted that the incident did not happen as described; even on a bare acceptance of facts, offences under 308 IPC and 354 IPC are not made out; there were only contusions, no serious injuries; past cases of the second accused are alleged but may be foisted due to enmity.

Contentions of Respondents

The Public Prosecutor argued that 8 persons were injured; the second accused has prior antecedents; the case involves a serious offence with potential to escalate; bail should not be granted without stringent conditions.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)	Suo Motu Writ Petition (C) No.1 of 2020	Mentioned Only	Cited to justify social distancing norms in prisons and related guidelines.
W.P(C)No.9400 of 2020	W.P.(C) No. 9400 of 2020	Mentioned Only	Cited as the Full Bench’s directions on COVID-19 related prison norms.
Chidambaram. P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Used to support the bail principle that bail is the rule and jail is the exception; fair trial considerations apply.

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** **MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942** ## **Bail Appl..No.4661 OF 2020** **CRIME NO.40/2020 OF Kolathur Police Station , Malappuram** ## **PETITIONER:** **DIVIN AGED 21 YEARS MELEPATTUTHODI HOUSE, KOLATHUR.P.O, MOORKKANAD AMSOM, KOLATHUR DESOM, PERINTHALMANNA TALUK MALLAPPURAM DIST 679338** **BY ADV. SRI.C.DINESH** ## **RESPONDENT:** **THE STATE OF KERALA, REP: BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN-682031** **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.4661 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.4661 of 2020 ------------------------------Dated this the 10[th] day of August, 2020 ## **O R D E R** This Bail Application is filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioners are the accused in Crime No.40 of 2020 of Kolathur Police Station, Malappuram. The above case is registered against the petitioners alleging offence punishable under Sections 143, 147, 148, 323, 324, 308, 506, 354 and 427 read with Section 149 IPC. 3.The prosecution case is that on 1.3.2020 during the late evening at about 7.15 p.m, in the public road at Koomullikulam colony in Moorkkanad amsom, while the de facto complainant and his friends were talking together after parking and sitting in their scooter, the accused No.4 along with 16 identifiable persons came there and formed themselves into an unlawful B.A.No.4661 of 2020 3 assembly, armed with deadly weapons like iron rod, wooden sticks, etc. They committed rioting and in furtherance of their common intention and object of committing culpable homicide, attacked on the complainant and his friends, after sprinkling chilly power and thereafter attacked them indiscriminately. According to the prosecution, 8 persons sustained injuries. 4. Heard the counsel for the petitioner and the Public Prosecutor. 5. 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 allegations are accepted, the offence under Section 308 IPC is not made out. The counsel submitted that the offence u/s.354 IPC is also not made out. Sections 354 and 308 are the non bailable offence alleged in this case. 6. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that 8 persons sustained injuries. The Public Prosecutor also submitted that B.A.No.4661 of 2020 4 the 2[nd] accused is having criminal antecedents. He is involved in Crime Nos.64 of 2019, 67 of 2019 and 170 of 2019 of Kolathur Police Station. The Public Prosecutor also submitted that Crime No.83 of 2019 is also registered against the 2[nd] petitioner. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. The Public Prosecutor made available the wound certificate of the injured persons. There is no serious injuries sustained to any of the injured persons. Only contusions are noted in the wound certificate. There is allegation of pain over body. Whether an offence u/s.308 IPC is attracted in the facts and circumstances of this case is a matter to be investigated. Similarly, the allegation is that the petitioner and other accused assaulted the de facto complainant and others with an intention to inflict injuries. In such circumstances, whether the offence u/s.354 IPC is made out or not is also a matter to be investigated. It is true that there are 4 cases registered against the 2[nd] petitioner. The counsel for the B.A.No.4661 of 2020 5 petitioner submitted that all those cases are registered for bailable offence and all those cases are foisted because of some enmity. 8. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. 9. 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. 10. 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 B.A.No.4661 of 2020 6 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. 11. 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 propose to arrest the petitioner, he shall be 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 B.A.No.4661 of 2020 7 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. 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 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 B.A.No.4661 of 2020 8 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, JUDGE** cms