High Court of KeralaSingle Judge2020-10-15Bail granted to petitioners under Section 438 C...

Jiju and others v. State of Kerala

Case / Petition Number:B.A.No.6471 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-10-15
Court Decision / Holding: This Bail Application is allowed with stringent conditions: (1) Petitioners to appear before the Investigating Officer within ten days for interrogation; (2) if arrest is proposed, release on bail on bond of Rs.50,000 with two solvent sureties of like amount each; (3) petitioners to appear for further interrogation as required and cooperate with the investigation; (4) petitioners not to leave India without court permission; (5) petitioners not to commit similar offences; (6) petitioners to adhere to COVID-19 social distancing guidelines issued by the State and Central Governments; (7) jurisdictional court may cancel bail for violation of conditions at any time.
Final Disposition: Bail granted to petitioners under Section 438 CrPC with stringent conditions.

Parties to the Case

Appellants / Petitioners

Jiju
Sijo Jose
Martin
Thomas

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• N. L. Bitto

Counsels for Respondents

• Ajith Murali, Public Prosecutor

Case Synopsis & Summary

This is a bail application under Section 438 CrPC filed by four petitioners—Jiju, Sijo Jose, Martin, and Thomas—accused in Crime No. 1077/2020 of Chalakkudy Police Station. The case stems from allegations that on 31.8.2020, the accused formed an unlawful assembly armed with deadly weapons with the common object of assaulting the defacto complainant; accused 1 allegedly caused hurt with an iron rod, while others attacked the complainant by beating and kicking. The prosecution contends the defacto complainant sustained grievous hurt with fractures to two fingers. The petitioners contest the incident, claiming a boundary dispute exists and that the first petitioner suffered a head injury; they argue that no case was registered despite examination by a doctor on the day of the incident, and contend the incident occurred differently. The learned Public Prosecutor maintains need for strict action given the injuries. After hearing both sides, the judge admits the possibility of releasing the petitioners on bail but under stringent conditions, and emphasizes bail as the rule and jail as the exception, citing Chidambaram P. v. D.E. and COVID-19 prison guidelines. The order directs that petitioners appear for interrogation within ten days, and if arrest is proposed, be released on bail on Rs.50,000 bonds with two solvent sureties each, comply with ongoing interrogation, refrain from leaving India, avoid further offences, and adhere to social distancing directives; breach may lead to cancellation of bail.

Provisions of Law Cited

Section 438 of the CrPCIPC 143IPC 147IPC 148IPC 341IPC 323IPC 324IPC 326IPC 448IPC 294(b)IPC 506IPC 427IPC 354IPC 354BIPC 149

Legal Doctrines & Maxims

Bail is the rule and jail is the exception.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that there is a longstanding boundary dispute with the defacto complainant, and the first petitioner sustained a head injury; despite medical examination on the day of the incident, no case was registered. They contend the incident did not occur as alleged and that the prosecution’s version is untrue; they emphasize the need to secure fair trial and reduce pre-trial detention, especially in light of the pandemic.

Contentions of Respondents

The Public Prosecutor argued that the defacto complainant sustained grievous hurt with fractures; the offences charged include a serious unlawful assembly and offences under the IPC. Given the nature of the allegations and injuries, the State contends that bail should be granted with caution and under stringent conditions to ensure cooperation with the investigation and to protect public order.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID-19 Virus In Prisons	Suo Motu Writ Petition (C) No.1 of 2020	Positive	Cited to justify social distancing and other precautions in prisons during the COVID-19 pandemic.
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Used to reinforce the principle that bail is the rule and jail is the exception.
W.P(C) No. 9400 of 2020	W.P(C) No.9400 of 2020	Positive	Full Bench guidance on minimizing prisoners and enforcing COVID-19-related safety protocols.

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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**| |---|---| |**THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942**|| ||**Bail Appl..No.6471 OF 2020**| |**CRIME**|**NO.1077/2020 OF Chalakkudy Police Station , Thrissur**| |**TIONER**|**S/ACCUSED**<br>**:**| |**1**|**JIJU**| ||**AGED 48 YEARS**| ||**SON OF OUSEPH, VERANPILAVU HOUSE, KUTTIKKAD DESOM,**| ||**KUTTIKKADU P.O., CHALAKUDY TALUK, THRISSUR DISTRICT,**| ||**680721**| |**2**|**SIJO JOSE**| ||**AGED 38 YEARS**| ||**SON OF JOSE, KANNATH HOUSE, KUTTIKKAD DESOM,**| ||**KUTTIKKAD P.O., CHALAKUDY TALUK, THRISSUR DISTRICT**| ||**680724**| |**3**|**MARTIN**| ||**AGED 38 YEARS**| ||**VERANPILAVU HOUSE, KUTTIKKAD DESOM, KUTTIKKAD**| ||**VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT,**| ||**680724**| |**4**|**THOMAS**| ||**AGED 39 YEARS**| ||**SON OF OUSEPH, MANJALY HOUSE, KUTTIKKAD DESOM,**| ||**KUTTIKKAD VILLAGE, CHALAKUDY TALUK, THRISSUR**| ||**DISTRICT,**| ||**680724**| ||**BY ADV. SRI.N.L.BITTO**| ## **PETITIONERS/ACCUSED:** B.A.No. 6471 OF 2020 2 ## **RESPONDENT/S:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 6471 OF 2020 3 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------- B.A.No.6471 of 2020 ------------------------------Dated this the 15[th] day of October, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioners are accused 1 to 4 in Crime No.1077 of 2020 of Chalakkudy Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 143, 147, 148, 341, 323, 324, 326, 448, 294(b), 506, 427, 354, 354 (B) r/w Section 149 of the IPC. 3. The prosecution case is that on 31.8.2020 at about 7.30 p.m., accused Nos. 1 to 9 formed themselves into an unlawful assembly armed with deadly weapons in prosecution of the common object to attack the defacto complainant, wrongly restrained B.A.No. 6471 OF 2020 4 while he was walking through the pathway at Kaithappilly and A1 had voluntarily caused hurt to him by beating with an iron rod. A2 to A5 had also attacked the defacto complainant by beating and kicking. Hence it is alleged that the accused committed the aforesaid offences. 4. Heard the counsel for the petitioners and the learned Public Prosecutor. 5. The counsel for the petitioners submitted that the 4[th] petitioner and defacto complainant are brothers. According to to the counsel, there is a boundary dispute between the parties. The counsel submitted that the first petitioner sustained very serious injury and Annexure-3 is the wound certificate. The counsel submitted that even though he was examined by the doctor concerned on the same day at 9.15 p.m., no case is registered. The counsel submitted that the incident is not happened as alleged by the prosecution. B.A.No. 6471 OF 2020 5 6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that, the defacto complainant sustained grievous hurt. The Public Prosecutor submitted that there is fracture on two fingers of the defacto complainant. 7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. According to the petitioners, the incident is not happened as alleged by the prosecution. According to the petitioners, the defacto complainant attacked them. According to the petitioners, the first petitioner sustained a head injury as evident by Annexure-3. Both sides sustained injuries. I don't want to make any observation on the merits of the case. Considering the entire facts and circumstances of the case, I think this Bail Application can be allowed on stringent conditions. 8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread ## B.A.No. 6471 OF 2020 6 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 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, this Bail Application is allowed with the following directions: 1. The petitioners shall appear before the ## B.A.No. 6471 OF 2020 7 Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners,they shall be released on bail 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 cooperate 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 them from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. B.A.No. 6471 OF 2020 8 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 petitioners, 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** al/-