Muhammed Salih Marwan v. State of Kerala

**2025:KER:26921** **==> picture [57 x 58] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947** ## **BAIL APPL. NO. 4036 OF 2025** **CRIME NO.121/2021 OF Mattannur Police Station, Kannur** **AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.628 OF 2025 OF HIGH COURT OF KERALA** **PETITIONER/S:** **MUHAMMED SALIH MARWAN AGED 31 YEARS MUHAMMAD SALIH MARWAN, AGED 31 YEARS, S/O. MOIDU, NOOR MAHAL, MANGATTIDOM AMSON, KANDERI, KOOTHUPARAMBA, THALASSERY TALUK, KANNUR DISTRICT, PIN - 670643** **BY ADVS. NANDITHA S. P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY N. BHAT RAHUL SUNIL SRUTHY K.K SOHAIL AHAMMED HARRIS P.P. AARON ZACHARIAS BENNY K.ARAVIND MENON** **RESPONDENT/S:** 2025:KER:26921 2 **==> picture [57 x 58] intentionally omitted <==** B.A.No.4036 of 2025 **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **P VIJAYABHANU(SR) SR PP-NOUSHAD K A** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2025:KER:26921 B.A.No.4036 of 2025 3 **==> picture [57 x 58] intentionally omitted <==** ## **P.V.KUNHIKRISHNAN, J.** **-------------------------------B.A. No.4036 of 2025** **---------------------------------** Dated this the 28[th] day of March, 2025 ## **ORDER** This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the accused in Crime No.121 of 2021 of Mattannur Police Station, which is now pending as SC No.128 of 2025 on the file of the Sessions Court, Thalassery. The petitioner is the 7[th] accused and the offence alleged against the petitioner and other accused are under Section 395 IPC. 3. The prosecution case is that on 13.02.2021 at about 4.20 a.m. the petitioner along with other accused intercepted an Innova car which is proceeding towards Mattannur Town with the 2[nd] 2025:KER:26921 **==> picture [57 x 58] intentionally omitted <==** ## B.A.No.4036 of 2025 4 accused and the robbed 1 Kg of gold of CW2. It is alleged that the petitioner is involved in this case. Hence, it is alleged that the petitioner and other accused committed the offence under Section 395 of IPC. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. Admittedly, the petitioner was arrested in connection with the above case on 02.11.2021 and thereafter, enlarged on bail as per order dated 23.11.2021 in Crl.M.C. No.1543 of 2021. Thereafter, the investigating officer filed a petition for cancellation of bail granted to the petitioner for the reason that he is involved in Crime No.13 of 2024 of Kuthuparamba Police Station in which also the offence alleged is under Section 395 of IPC. That petition was allowed and the bail was cancelled. The petitioner subsequently surrendered 2025:KER:26921 5 **==> picture [57 x 58] intentionally omitted <==** ## B.A.No.4036 of 2025 on 26.12.2024. The petitioner is in custody from that date on wards. 6. When this bail application came up for consideration, Senior Counsel Sri.P.Vijaya Bhanu submitted that the case registered against the petitioner is a false case and the matter is settled with the victim in that case. Senior Counsel submitted that Crl.M.C has already been filed before the court to quash the proceedings and the same is pending. This Court directed the Public Prosecutor to verify the same. Public Prosecutor submitted that the statement is recorded from the victim in Crl.M.C. No.1011 of 2024 and the victim submitted that he has no grievance against the petitioner. Admittedly, the petitioner is in custody from 26.12.2024. Senior Counsel submitted that the petitioner is ready to abide any conditions imposed by this Court, if this Court 2025:KER:26921 6 **==> picture [57 x 58] intentionally omitted <==** ## B.A.No.4036 of 2025 grant him bail. Considering the facts and circumstances of the case, the petitioner can also be released on bail. I make it clear that if the petitioner is involved in similar offences in future, the investigating officer can file appropriate application before the jurisdictional court to cancel his bail and if such an application is filed, the jurisdictional court can pass appropriate orders in that application even though this order is passed by this Court. 7. 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 2025:KER:26921 7 **==> picture [57 x 58] intentionally omitted <==** ## B.A.No.4036 of 2025 exception so as to ensure that the accused has the opportunity of securing fair trial. 8. Moreover, in **Jalaluddin Khan v. Union of India [2024 KHC 6431]** , the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled 2025:KER:26921 B.A.No.4036 of 2025 8 **==> picture [57 x 58] intentionally omitted <==** law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) 9. In **Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426]** , also the Hon'ble Supreme Court observed that: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well - settled 2025:KER:26921 9 **==> picture [57 x 58] intentionally omitted <==** ## B.A.No.4036 of 2025 principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".” 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. Petitioner shall be released on 2025:KER:26921 B.A.No.4036 of 2025 10 **==> picture [57 x 58] intentionally omitted <==** bail on executing a bond for Rs.2,00,000/- (Rupees two lakhs only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. The petitioner shall appear before the 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 them from disclosing such facts to the Court or to any police officer. 3. Petitioner shall not leave India without permission of the jurisdictional Court. **==> picture [57 x 58] intentionally omitted <==** ## 2025:KER:26921 ## B.A.No.4036 of 2025 ## 11 4. 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. 5. 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. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. Sd/- ## **P.V.KUNHIKRISHNAN JUDGE** Scl/