PRADEEP SAMUEL S/O SAMUEL SAKARIA v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942** ## **Bail Appl..No.7401 OF 2020** **CRIME NO.278/2013 OF NEDUMANGAD POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **PRADEEP SAMUEL S/O. SAMUEL SAKARIA, AGED 54 YEARS, RESIDING AT MUDACKAMANNIL, CHITTADY P.O.KOTTAYAM PIN-686512** **BY ADVS. SHRI.SHAMEM M.S. SRI.ZUBAIR PULIKKOOL SRI.K.GOPALAKRISHNA KURUP (SR.)** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM-682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.NO.7401 OF 2020 2 **P.V.KUNHIKRISHNAN, J. ======================= B.A.No.7401 of 2020 ====================== Dated this the 17[th] day of November, 2020** ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The Petitioner is the 2[nd] accused in crime No.278/2013 on the file of Nedumangad Police Station, Thiruvananthapuram District. The above case is registered against the petitioner and others alleging offences punishable under Section 294(b), 450, 307, 395, 427, 354, 326 of the Indian Penal Code and Section 27 of the Arms Act. 3. The prosecution case is that, the accused in this case formed themselves into an unlawful assembly with deadly weapons criminally trespassed into the house of the defacto complainant on 18.03.2013 at about B.A.NO.7401 OF 2020 3 1.30.p.m., breaking open the front door, with the common intention to kill the defacto complainant and then the 1[st] accused, who is no more now, uttered to kill the defacto complainant and thereafter the 1[st] accused using a sword tried to cut on the defacto complainant's head, which blocked by the defacto complainant and resulted in causing injury to his right hand and the 2[nd] accused, who is the petitioner herein using a sword tried to cut on the defacto complainant's head, which blocked by him and resulted in causing grievous injury and fracture to his left elbow. Thereafter, all the accused attacked him with weapons and the defacto complainant's sister was pushed away and assaulted by the accused and thereby outraged her modesty. It is also alleged that, a gold chain weighing Rs.5[1] /2 sovereign worth Rs.1 lakh owned by the defacto complainant's sister was taken away by the 3[rd] accused and then the accused destroyed the car parked in front of B.A.NO.7401 OF 2020 4 the house, causing a loss of Rs.2 lakh. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The senior counsel, Adv. K Gopalakrishna Kurup, appeared for the petitioner as instructed. The senior counsel submitted that, even if the entire allegations are accepted, in the light of Annexure A6, Order of the Civil Court, the 1[st] accused in this has got a right to protect his property. According to the senior counsel, in A6 Order, Civil Court clearly found that, the defacto complainant and party have no right in the property. That Order was passed on 28.08.2013. This alleged incident happened subsequent to that. The alleged place of occurrence is the building covered by Annexure A6 order. Therefore, the senior counsel submitted that, even if there is injury sustained in a scuffle happened, when the 1[st] accused was protecting his property based on Annexure A6 Order, no offence is prima facia made out. This is the B.A.NO.7401 OF 2020 5 sum and substance of the contention of the senior counsel. The senior counsel submitted that, the entire dispute between Shaju George(A1) and Reji Cheriyan was settled and Annexure A7 is the compromise order. The senior counsel submitted that, now the defacto complainant is taking some advantage of position after the death of the 1[st] accused, demanding huge amount from the petitioner to settle this issue. The senior counsel submitted that, this is a fit case in which this Court should invoke the powers under Section 438 Cr.P.C. The senior counsel submitted that, the petitioner is ready to abide any conditions, if this Court grant him bail. 6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor made available all the records, including the FIS and the wound certificate of the injured. 7. This is a crime registered in 2013. B.A.NO.7401 OF 2020 6 Earlier, the petitioner filed an application before the Sessions Court,Thiruvananthapuram. with an application under Section 438 Cr.P.C. That application was dismissed by the Learned Session Judge on 10.08.2018. Thereafter, the petitioner filed a bail application before this Court. That application was dismissed as per Order dated 05.04.2019. Actually, the bail application was dismissed for default. Subsequently, again the petition was filed an application before this Court under Section 438 Cr.P.C. as B.A.No.2000/2020. That application was withdrawn with liberty to file again. Therefore, in effect, this is the 3[rd] bail application filed under Section 438 Cr.P.C. The alleged incident happened in 2013. But it is a fact that, the petitioner is not arrested even now, in connection with the above case. Probably, the investigation of the case is also delayed indefinitely because of the reason that the petitioner is not arrested. The Investigation Officer also |B.A.NO.7401 OF 2020<br>7| |---| |may be waiting for the presence of this| |petitioner for concluding the investigation.| |At this distance of time, whether this| |petition is to be dismissed or not is the| |question to be decided. It is true that, the| |allegations against he petitioner are very| |serious. But the learned senior counsel takes| |me through Annexure A6 Order of the Civil| |Court. I cannot decide anything based on| |Annexure A6, Civil Court Order. But it is a| |fact that, the Investigating Officer has not| |arrested the petitioner, even after 7 years.| |There is no case to the Investigating Officer| |that, the petitioner is absconding. In such| |circumstances, I think, this Court can direct| |the petitioner to surrender before the| |Investigating Officer within 10 days from| |today and direct him to co-operate with the| |investigation and thereafter, direct the| |Investigating Officer, to release the| |petitioner on bail.| |8. Therefore, this bail application is| B.A.NO.7401 OF 2020 8 allowed on stringent conditions. 9. 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 **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 10. 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. B.A.NO.7401 OF 2020 9 11. 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 petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties for the like sum to the satisfaction of the officer concerned. 3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner 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 him from disclosing such B.A.NO.7401 OF 2020 10 facts to the Court or to any police officer. 4. Petitioner shall not leave India without permission of the jurisdictional Court. 5. 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. 6. The petitioner 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 petitioner, 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** NB