High Court of KeralaSingle Judge2020-04-29Bail granted to the applicant under specified c...

Nishaf N.S v. State of Kerala

Case / Petition Number:BA NO. 2394 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2020-04-29
Court Decision / Holding: The bail application is allowed; bail granted with conditions.
Final Disposition: Bail granted to the applicant under specified conditions.

Parties to the Case

Appellants / Petitioners

Nishaf N.S

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Joseph Rony Jose

Counsels for Respondents

• SMT.PUSHPALATHA M.K

Case Synopsis & Summary

Nishaf N.S., the second accused in Crime No. 92/2020 of Aroor Police Station, Alappuzha District, sought bail under Section 439 CrPC. The prosecution alleges offences under sections 341, 326, 307, and 506(ii) read with Section 34 IPC, arising from an altercation on 25.01.2020 in which the de facto complainant was assaulted. The petitioner has been in custody since 02.04.2020, about 28 days, while the first accused has already been granted bail; the investigation is essentially complete. The defense submitted that ongoing detention is unnecessary, and with COVID-19 decongestion measures and a long line of Supreme Court decisions recognizing bail as the rule, the court should release him with suitable conditions. The Public Prosecutor countered that the allegations include the petitioner allegedly shouting to the first accused to murder the complainant, and thus, if bail is granted, it must be subject to stringent conditions and close monitoring. The court considered Sanjay Chandra v. CBI, Nikesh Tarachand Shah v. Union of India, P. Chidambaram v. Directorate of Enforcement, and In Re: Contagion of COVID-19 Virus In Prisons, as well as a Full Bench order directing decongestion of prisons, to emphasize that bail is the general rule. In view of the almost complete investigation, the first accused's bail, and the pandemic context, the court allowed the bail application, subject to conditions including address, bonds, periodic appearances, non-tampering with evidence, non-commission of offences, and no travel outside Kerala without court permission.

Provisions of Law Cited

Section 439 of the Code of Criminal ProcedureSections 341, 326, 307, 506(ii) read with Section 34 IPCArticle 21 of the Constitution

Legal Doctrines & Maxims

Bail is the rule and jail is the exception.
Personal liberty under Article 21 of the Constitution.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he has been in custody since 02.04.2020—approximately 28 days—while the investigation is near completion; the first accused has already obtained bail; there is no cogent reason to continue detention, especially in the COVID-19 context where courts and state authorities are decongesting prisons. Relying on Supreme Court decisions that bail is the rule and jail is an exception, and on the Court’s COVID-19 orders, the petitioner seeks bail with reasonable conditions, including reporting requirements and bonds. The defense argues that continuing detention would amount to a restriction on personal liberty and that the risk of flight or tampering can be mitigated by conditions.

Contentions of Respondents

The State contends that the petitioner’s alleged involvement in urging the first accused to murder justifies strict conditions on bail; the extension of detention remains necessary until the investigation is complete and the matter is thoroughly examined; the COVID-19 context is not to be used as a blanket justification to loosen bail standards; if bail is granted, it should be subject to stringent conditions to ensure the integrity of the investigation and the safety of the complainant.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Sanjay Chandra v. CBI	2012 (1) SCC 40	Positive	Used to reinforce the principle that bail is the rule and jail is the exception, supporting grant of bail in appropriate circumstances.
Nikesh Tarachand Shah v. Union of India	2018 (11) SCC 1	Positive	Cited to reinforce bail jurisprudence and the constitutional protection of personal liberty in the COVID era.
Gurbaksh Singh Sibbia v. State of Punjab	[(1980) 2 SCC 565]	Positive	Cited as foundational authority on bail principles and the freedom of movement under due process.
P. Chidambaram v. Directorate of Enforcement	[2019] SCC Online SC 1549	Positive	Cited as reinforcing the bail-rule doctrine and proportionality in restrictions on liberty.
In Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition (C) No.1 of 2020	Positive	Cited to justify decongestion measures and consideration of bail in the COVID-19 context.
W.P.(C) No.9400 of 2020 (Suo Motu)	(Full Bench, 2020)	Positive	Full Bench directions on prison decongestion cited to support policy context favoring bail where appropriate.

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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 C.S.DIAS** **WEDNESDAY,THE 29TH DAY OF APRIL, 2020/9TH VAISAKHA, 1942** **B.A NO. 2394 of 2020** **(Crime No.92/2020 of Aroor Police Station,Alappuzha District)** **Petitioner/Accused :** **Nishaf N.S aged 28 years, S/o. Shereef, Nishaf Manzil, Eramalloor P.O., Alappuzha District.** **By Adv. Sri Joseph Rony Jose** ## **- Respondent/ State:** **1. State of Kerala –** **represented by Public Prosecutor High Court of Kerala, Ernakulam – 682 031.** **BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.04.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 BA.NO. 2394 of 2020 ## **ORDER** This is an application filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner is the 2[nd] accused in Crime No. 92/2020 of the Aroor Police Station, Alapuzha District. The petitioner along with other accused are alleged to have committed the offences punishable under Sections 341, 326, 307, 506(ii) read with Section 34 of Indian Penal Code. 3. The prosecution case, in brief, is that; the petitioner along with other accused, out of their previous enmity, attacked the de-facto complainant on 25.01.2020. The 1[st] accused inflicted injury on de-facto complainant. The other accused abetted the 1[st] accused to commit the offence. Thus the above accused have committed the above offenses. 4. The petitioner was arrested on 02.04.2020. The 3 BA.NO. 2394 of 2020 application for bail was dismissed by the learned Magistrate. 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor via video-conferencing. 6. The learned counsel for the petitioner argued that the petitioner is in custody since 02.04.2020, which is 28 days. The investigation in the case is complete, as against the petitioner. The 1[st] accused has already been granted bail. The petitioner's further incarceration is unnecessary. Hence the petitioner may be granted bail. 7. The learned Public Prosecutor, on instructions, submitted that the accused was arrested on first 26.01.2020, it was only after the investigation as against the first accused was completed, he was enlarged on bail. The allegation against the petitioner is that he shouted to the 1[st] accused to murder the complainant. Even if the petitioner enlarged on bail, stringent conditions may be imposed on him. 4 BA.NO. 2394 of 2020 8. The Hon'ble Supreme Court in _**Sanjay Chandra v. CBI**_ [2012 (1) SCC 40] held as follows: "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution". 9. Recently, the Honourable Supreme Court in _**Nikesh Tarachand Shah v. Union of India**_ [2018 (11) SCC 1] after going back to the days of the Magna Carta and after referring to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] has reiterated the same view in _**Sanjay Chandra v. CBI (supra).**_ Again, in P **.Chidamabram v. Directorate of Enforcement** [(2019) SCC Online SC 1549] the above proposition has been fortified. 10. After the outbreak of the Novel Corona Virus (COVID -19) pandemic in the country, the Hon'ble Supreme Court in In Re: Contagion of COVID-19 Virus In Prisons case 5 BA.NO. 2394 of 2020 (Suo Motu Writ Petition (C) No.1 of 2020) observed that the issue of overcrowding of prisons is a matter of serious concern. The State Governments were directed to take adequate measures to de-congest the prisons. Following the above direction, the Home Department, Government of Kerala has promulgated order dated 25.03.2020, _inter alia_ , directing the release of under-trial prisoners alleged to have committed offences punishable with punishment for seven years or less. Later, a Full Bench of this Court by order dated 25.03.20202 in W.P.(C) No.9400 of 2020 (Suo Motu), has issued directions to de-congest the prisons in the State, keeping in mind the proposition that bail is the rule and jail is the exception. 11. Having regard to the facts and circumstances of the case, particularly the fact that that the petitioner has been in custody since 02.04.2020, which is 28 days; that the first accused had already been granted bail; that the investigation in the case is practically complete; that the petitioner's continued detention is unnecessary; 6 BA.NO. 2394 of 2020 the legal proposition laid down by the Honourable Supreme Court in the afore quoted decisions; and the directions of the Honourable Supreme Court and a Full Bench of this Court to decongest prisons in view of Covid19 pandemic, I am inclined to allow this bail application. 12. In the result this bail application is allowed, on the following conditions:- (i) Due to the present National lock-down and the closure of Courts, the Jail Superintendent, where the petitioner is incarcerated, is directed to release the petitioner on him furnishing his permanent address and phone number and the addresses and phone numbers of his proposed sureties/immediate relatives. The petitioner shall also file an undertaking to the Jail Superintendent that he and his sureties will execute the bail bond before the jurisdictional Court within one week of its reopening. The Jail Superintendent after ensuring 7 BA.NO. 2394 of 2020 the compliance of the above conditions, shall release the petitioner to the Station House Officer of the Police Station where the crime has been registered, who shall after noting down the above details, release the petitioner. The Investigating Officer shall keep a close vigil on the whereabouts of the petitioner. (ii) The petitioner shall within one week from the re-opening of the jurisdictional Court, if not already re-opened, execute a bond for a sum of Rs.50,000/- (Rupees fifteen thousand only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court. (iii) The petitioner shall appear before the Investigating Officer on all Tuesdays and Saturdays between 10.00 a.m and 11 a.m till final report is filed. (iv) The petitioner shall not tamper with the evidence or influence the witnesses in the case, 8 BA.NO. 2394 of 2020 in any manner, whatsoever. (v) The petitioner shall not commit any offence while on bail. (vi) The petitioner shall not leave the state of Kerala without the permission of the jurisdictional court. (vii) Needless to mention that, if the petitioner violates any of the above conditions, the Station House Officer shall be at liberty to approach the jurisdictional Court and file appropriate application seeking for cancellation of the bail. **(Sd/-) C.S.DIAS, JUDGE** SM