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High Court of KeralaSingle JudgeBail granted to the petitioners with specified ...

Nasar M. et al. v. State of Kerala

Case / Petition Number:BA NO.2916 OF 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P.V.KUNHIKRISHNAN
Judgment Date
2020-05-15
Court Decision / Holding
The Bail Application is allowed. The petitioners are directed to be released on bail on executing a self-bond under Section 441 Cr.P.C., with a Rs.50,000 bail bond and two solvent sureties for the same amount; provide post-release residence details and contact numbers; report to the jurisdictional SHO on release and as required; appear before the Investigating Officer when required; and comply with social distancing and other governmental guidelines. If conditions are violated, the bail may be canceled. The jail authorities are to monitor compliance and ensure no hindrance to the investigation, and the jurisdictional court may enforce terms as necessary.
Final Disposition
Bail granted to the petitioners with specified conditions (1-8) as detailed in the order.

Parties to the Case

Appellants / Petitioners

  • Nasar.M
  • Shameer M
  • Hameed K.
  • Nasar C
  • Sirajudheen K
  • Sulaiman K.A
  • Aslam C.
  • Muhammed K.M.
  • Noufal M.E
  • Basheer

Respondents

  • State of Kerala Represented by the Public Prosecutor, High Court of Kerala, Kochi-31
  • Sub Inspector of Police, Padinharahtara Police Station, Wayanad District - 673575

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. K. Mohanakannan

Counsels for Respondents

  • • P.P. Sri. B. Jayasurya (Sr) & C.K. Prasad

Case Synopsis & Summary

This is a bail application under Section 439 Cr.P.C. by ten accused persons in Crime No.225/2020 of Padinharathara Police Station, Wayanad District. The petitioners were arrested on 05.05.2020 and are in custody. The offences alleged include: unlawful assembly and obstruction of a Police officer, under Sections 143, 147, 188, 269, 353 read with Section 149 IPC; and additional charges under Section 5 of the Kerala Epidemic Diseases Ordinance, 2020 and Sections 118(3), 39, 121 of the Kerala Police Act, 2011. The petitioners’ counsel contends that the incident is not proven as alleged, and even if admitted, the offence under Section 353 is not made out; there were no serious injuries, hence bail could be granted with stringent conditions. The Public Prosecutor responds that the absence of serious injuries does not preclude bail, and with proper safeguards the petitioners may be released. After hearing, the Court notes the petitioners have been in custody since 05.05.2020 and emphasizes the need to follow social distancing and prison-amenable directions during the COVID-19 pandemic (citing Re: Contagion of COVID-19 Virus In Prisons and a Full Bench decision in Writ Petition No.9400 of 2020). Relying on Chidambaram P. v. Directorate of Enforcement, the Court holds bail is the rule and refusal is the exception, and grants bail with conditions listed in the order.

Provisions of Law Cited

Section 439 Cr.P.C.Section 353 IPCSection 143 IPCSection 147 IPCSection 188 IPCSection 269 IPCSection 149 IPCSection 5 of Kerala Epidemic Diseases Ordinance, 2020Section 118(3) of Kerala Police Act, 2011Section 39 of Kerala Police Act, 2011Section 121 of Kerala Police Act, 2011Section 441 Cr.P.C.

Legal Doctrines & Maxims

  • Bail is the rule and jail is the exception
  • Bail is the rule and refusal is the exception as per Chidambaram P. v. Directorate of Enforcement

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the petitioners submitted that the incident as alleged by the Prosecution is not established. Even if the allegations are accepted, the essential element of 353 IPC (assault to deter a public servant) is not made out. The accused assert that there were no serious injuries to the complainant or other persons, and that the case should be permitted to proceed with strict monitoring rather than detention. They urge the court to exercise the bail jurisdiction freely given the early stage of the investigation and the COVID-19 context, while proposing conditions to ensure presence before trial and non-interference with witnesses.

Contentions of Respondents

The learned Public Prosecutor argued that while there were no grievous injuries, the gravity of the charges and possibility of tampering with witnesses necessitate bail on stringent conditions. He emphasized maintaining public order, safety, and compliance with health guidelines in prisons during the pandemic. The Respondents contended that the accused, by forming an unlawful assembly and obstructing a police officer, pose risk to public safety and law-and-order; thus, bail should be available but under robust conditions to secure the investigation and trial.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Re: Contagion of COVID-19 Virus In PrisonsSuo Motu Writ Petition (C) No.1 of 2020PositiveCited to justify social distancing norms in prisons and related directions.
Writ Petition No. 9400 of 2020Writ Petition (C) No.9400 of 2020PositiveFull Bench directions regarding minimizing inmate population cited in support of safe prison practices.
Chidambaram P. v. Directorate of Enforcement2019 (16) SCALE 870PositivePrinciple that bail is the rule and denial is the exception, guiding the grant of bail.

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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 15TH DAY OF MAY 2020 / 25TH VAISAKHA, 1942** ## **BA NO.2916 OF 2020** **(AGAINST THE CRIME NO.225/2020 OF PADINHARAHTARA POLICE STATION, WAYANAD DISTRICT )** ## **- PETITIONERS/Accused:** **1. Nasar.M, S/o.Mammu, aged 35 years,** - **Mundakutty Post, Kuppadithara, Wayanad District .** **2. Shameer M, S/o.Ibrahim, aged 39 years, Arambbattakunnu Post, Kuppadithara, Wayanad District** **3. Hameed K., S/o. Abdulla, aged 45 years, Mundakutty Posst, Kuppadithra, Wayanad District** **4. Nasar C, S/o.Kunhabdhulla, aged 46 years, Cholambal House, Kunnalam, Mundakutty Post Kuppadithara, Wayanad District** **5. Sirajudheen K, S/o.Irahim, aged 38 years, Kuniyan House, Mundakutty Post Kuppadithra, Wayanad District** **6. Sulaiman K.A, S/o.Abdhulla, aged 38 years, Kuriyan House, Mundakutty Post Kuppadithara, Wayanad District** **7. Aslam C., S/o.Ammed, aged 31 years, Cholamban House, Mundakutty Post Kuppadithara, Wayanad District** **8. Muhammed K.M., S/o.Moosa, aged 40 years, Kuniyan House Mundakutty Post Kuppadithra, Wayanad District** **9. Noufal M.E, S/o.Ibrahim, aged 33 years, Muthuvodan House, Mundakutty Post Kuppadithara, Wayanad District** - **10.Basheer, S/o.Moidhu, aged 42 years, Kuniyan House, Mundakutty Post,Kuppadithara, Wayanad District** ## **BY.ADV.K.MOHANAKANNAN** B.A. No.2916 OF 2020 2 ## **RESPONDENT/State** **1. State of Kerala Represented by the Public Prosecutor, High Court of Kerala, Kochi-31** **2. Sub Inspector of Police, Padinharahtara Police Station, Wayanad District -673 575** **By P.P. Sri.B.JAYASURYA (SR) & C.K.PRASAD** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15.05.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. No.2916 OF 2020 3 ## **O R D E R** This Bail Application filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. The petitioners are the accused in Crime No.225 of 2020 of the Padinharathara Police Station registered alleging offences punishable under Sections 143, 147, 188, 269, 353 r/w Section 149 of the Indian Penal Code and also under Section 5 of the Kerala Epidemic Diseases Ordinance, 2020 and Section 118(3), 39, 121 of Kerala Police Act, 2011. The petitioners were arrested on 05.05.2020 and they are in custody. 3. The prosecution case is that, the petitioners formed themselves into an unlawful assembly and obstructed a Police Officer while doing his duty. 4. The learned counsel for the petitioners submitted that the incident was not happened, as alleged by the Prosecution. According to the learned counsel, even if the entire allegations B.A. No.2916 OF 2020 4 are accepted, the offence under Section 353 is not made out against the petitioners. 5. The learned Public Prosecutor submitted that since there was no serious injuries sustained, this Bail Application can be granted on stringent conditions. 6. After hearing both sides, considering the facts and circumstances of the case and considering the fact that no serious injuries were sustained by the injured and also to the fact that the petitioners are in custody from 05.05.2020, I think, this Bail Application can be allowed. 7. 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 **Writ Petition(C) No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 8. Moreover, it is a well accepted principle that the bail is B.A. No.2916 OF 2020 5 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. 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 Superintendent of Jail concerned where the petitioners are incarcerated is directed to release the petitioners on bail on executing a self bond ensuring that they will appear before the Court concerned as and when required if they are not in detention in any other case. It is further directed that the Superintendent of Jail should get the bail bond B.A. No.2916 OF 2020 6 from the petitioners as stipulated in Section 441 Cr.P.C. 2. The Superintendent of Jail concerned shall also get the phone number and the address at which the petitioners would be residing after their release. 3. The Superintendent of Jail concerned, immediately after release of the petitioners will forthwith forward the bail bond obtained from the petitioners to the jurisdictional Court. 4. The petitioners immediately after release from the prison, report before the Station House Officer of the Jurisdictional Police Station and shall furnish their phone number and the place where they are going to reside. The Station House Officer concerned shall keep a vigil on the whereabouts of the petitioners and shall ensure that the petitioners do not violate the terms of the B.A. No.2916 OF 2020 7 undertaking. 5. The petitioners 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. 6. The petitioners shall within one week from the commencement of the functioning of the jurisdictional court, if the court is not functioning at present, execute 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. 7. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing and other directions in the wake of declared lock- B.A. No.2916 OF 2020 8 down. 8. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance with law, even though the bail is granted by this Court. ## **(Sd/-)** **P.V.KUNHIKRISHNAN, JUDGE** pkk