Rahul Sunil v. State of Kerala

## **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** **Bail Appln. No. 2457/2020** **(Crime No.40/2020 of Kalamassery Police Station, Ernakulam District)** **PETITIONER/ ACCUSED:** **Rahul Sunil, aged 21 years, S/o. Sunil P.K., Palliparambil (H), Chakkyadom, Kalamassery, Ernakulam - 683104** **By Adv. C.C.Abraham** ## **RESPONDENT/Complainant:** **State of Kerala, represented by the Public Prosecutor, High Court of Kerala, - Ernakulam 31.** ## **BY PUBLIC PROSECUTOR SRI.E.C. BINEESH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.04.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appln. No. 2457/2020 2 ## **ORDER** This is an application filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner is the 7[th] accused in Crime No.40/2020 of Kalamassery Police Station. The petitioner and the other accused are alleged to have committed the offences punishable under Section 394 of the IPC. 3. The prosecution case, in brief, is that: on 19.01.2020, the accused stopped the defacto complainant and demanded money from him and his mobile phone. When the defacto complainant refused to handover the money and mobile phone, one of the accused hit him on his chest and the other accused beat him. Thus, the petitioners have committed the above offence. Bail Appln. No. 2457/2020 3 4. The petitioner was arrested on 12.03.2020. His application for bail was dismissed by the Judicial First Class Magistrate, Kalamassery, by order dated 18/03/2020 in CMP No. 763/2020. 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 investigation in this case is practically complete. The weapon that was used, has been recovered. The first accused who had hit the defacto complainant, was released on bail by the learned Magistrate, by order dated 23.03.2020 in Crl.MC No.768/2020. The other accused have been granted interim bail by this Court in various other bail applications. The petitioner's continued detention is unnecessary. Hence, the petitioner may be enlarged on bail. 7. The learned Public Prosecutor admitted to the fact that the other accused have been granted bail. He, however, Bail Appln. No. 2457/2020 **==> picture [8 x 9] intentionally omitted <==** submitted that the petitioner is involved in Crime No. 1553/2019, on the said ground the petitioner's bail application was dismissed. If the petitioner is enlarged on bail, stringent conditions may be imposed. 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** Bail Appln. No. 2457/2020 5 **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 (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 decongest the prisons in the State, keeping in mind the proposition that bail is the rule and jail is the exception. 6 Bail Appln. No. 2457/2020 11. Having regard to the facts and circumstances of the case, particularly the fact that the investigation in this case is practically complete; that the petitioner has been in incarceration for the last 44 days; that the other accused have been already enlarged on bail; that the petitioner's continued detention is no longer necessary; the legal proposition laid down by the Honourable Supreme Court in the aforecited decisions; and the directions of the Hon'ble Supreme Court and a Full Bench of this Court to decongest prisons in view of Covid-19 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 Bail Appln. No. 2457/2020 7 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 re-opening. The Jail Superintendent after ensuring 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 Fifty Thousand only) with two Bail Appln. No. 2457/2020 **==> picture [8 x 10] intentionally omitted <==** 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 11.00 a.m for a period of 2 months from today. (iv) The petitioner shall not tamper with the evidence or influence the witnesses in the case, 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 Bail Appln. No. 2457/2020 **==> picture [8 x 10] intentionally omitted <==** 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** ska