Musthafa @ Paichan Musthafa v. State of Kerala

BA No.4542 of 2025 1 ``` 2025:KER:28999 ``` **==> picture [57 x 58] intentionally omitted <==** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 4[TH] DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4542 OF 2025 ``` ``` CRIME NO.96/2025 OF KAIPAMANGALAM POLICE STATION, ``` ## **`THRISSUR`** ``` AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.3145 OF 2025 OF HIGH COURT OF KERALA ``` ## **`PETITIONER(S)/ACCUSED:`** ``` MUSTHAFA @ PAICHAN MUSTHAFA AGED 47 YEARS, S/O. BAVA, PUTHANKARAYILLATH HOUSE, MOONUPEDIKA, KAPPAL PALLI, PERINJANAM .P.O., PIN - 680686 ``` ``` BY ADVS. M.SHAJU PURUSHOTHAMAN K.S.RAJESH ``` ## **`RESPONDENT( S ) :`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADV.: ``` ## **`SR PP-HRITHWIK C S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No.4542 of 2025 2 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:28999` **P.V.KUNHIKRISHNAN, J. ------------------------------------------BA No.4542 of 2025 -------------------------------------------Dated this the 04[th] day of April, 2025** ## **O R D E R** This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. 2. The petitioner is an accused in Crime No.96/2025 of Kaipamangalam Police Station, Thrissur. The above case is registered against the petitioner alleging offences punishable under Sections 126(2), 118(1), 351(2) and 109(1) of the Bharatiya Nyaya Sanhita (BNS), 2023. 3. The prosecution case is that, on 02.02.2025 at 08.30 PM, the accused wrongfully BA No.4542 of 2025 3 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:28999 ``` confined the defacto complainant and assaulted him and attempted to commit murder. Hence, it is alleged that the accused committed the offence. The petitioner was arrested on 04.02.2025. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from 04.02.2025. The counsel submitted that the petitioner has not committed any offence. The counsel also submitted that the petitioner is ready to abide any condition imposed by this Court, if this Court grants him bail. 6. The Public Prosecutor opposed the bail application. He submitted that the petitioner has got criminal antecedents and he is involved in BA No.4542 of 2025 4 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:28999 ``` three other cases. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner is very serious. But, the petitioner earlier filed a bail application before this Court as BA No.3145/2025. After hearing both sides, this Court was not inclined to grant bail to the petitioner at that stage. Then the counsel for the petitioner wants to withdraw the bail application with liberty to file it again after some time. This Court granted liberty to file the bail application after two weeks. Accordingly, the present bail application is filed. Moreover, the petitioner is in custody from 04.02.2025. Considering the period of detention, I think, the petitioner can be released on bail after imposing stringent conditions. BA No.4542 of 2025 5 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:28999 ``` 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. 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 BA No.4542 of 2025 6 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:28999` 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 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 modifcation that the bail can be granted if the conditions in the statute are satisfed. 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) ## 10. In _**Manish Sisodia v. Directorate of**_ BA No.4542 of 2025 7 **==> picture [57 x 58] intentionally omitted <==** ## `2025:KER:28999` ## _**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 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".” Considering the dictum laid down in the above decisions and considering the facts and circumstances of this case, this Bail Application is BA No.4542 of 2025 8 ``` 2025:KER:28999 ``` **==> picture [57 x 58] intentionally omitted <==** ## allowed with the following conditions: _1. Petitioner shall be released on bail_ _on executing a bond for Rs.50,000/(Rupees Fifty Thousand 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_ BA No.4542 of 2025 9 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:28999 ``` _him from disclosing such facts to the Court or to any police officer._ _3. Petitioner shall not leave India without permission of the jurisdictional Court._ _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. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in_ _**Anzar Azeez v. State of Kerala**_ _[2025 SCC OnLine KER 1260] is_ BA No.4542 of 2025 10 **==> picture [57 x 58] intentionally omitted <==** ``` 2025:KER:28999 ``` _applicable in this case also._ _6. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance_ `w` _ith 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 condition._ **Sd/-** nvj **P.V.KUNHIKRISHNAN JUDGE**