Shafees v. State of Kerala

**==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:26794` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 28[TH] DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4260 OF 2025 ``` ``` CRIME NO.81/2025 OF Hemambika Nagar Police Station, Palakkad ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.2763 OF 2025 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/S:`** ``` SHAFEES AGED 32 YEARS S/O.SHAJAHAN, SHAJITHA MANZIL, THAZHEMURALI, INDUSTRIAL ESTATE, PUTHUPARIYARAM, PALAKKAD., PIN - 678731 ``` ``` BY ADV NIREESH MATHEW ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031 ``` ``` SR PP-NOUSHAD K A ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:26794 ``` ``` BAIL APPL. NO.4260 OF 2025 ``` **==> picture [58 x 58] intentionally omitted <==** `2` **P.V.KUNHIKRISHNAN, J -------------------------------B.A.No.4260 of 2025 ------------------------------Dated this the 28[th] day of March, 2025** ## **O R D E R** This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS). 2. Petitioner is the first accused in Crime No.81/2025 of Hemambika Nagar Police Station, Palakkad. The above case was originally registered under Section 194 of the BNSS. Subsequently, the offence under Sections 108 r/w 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023 is added. Petitioner was arrested on 12.02.2025 and he is in custody. 3. The prosecution case is that, the first accused had illicit relationship with the second accused. The second accused continuously threatened the deceased to leave from the life of the first accused. It is alleged that on 04.02.2025 at about 10:00 a.m., there were quarrel between the first accused and the deceased due to the illicit relationship between the accused persons. It is further alleged that, due to **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:26794 ``` ``` BAIL APPL. NO.4260 OF 2025 ``` ``` 3 ``` same, the deceased committed suicide on 05.02.2025. Hence, it is alleged that the petitioner and other accused instigated the deceased, to commit suicide. Hence, it is alleged that the accused committed the offence. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that, even if the entire allegations are accepted, ingredients of Section 108 of BNS is not attracted. The counsel submitted the petitioner is in custody from 12.02.2025 and petitioner is ready to abide by any conditions, if this Court grants him bail. 6. Public Prosecutor opposed the bail application. He submitted that, a perusal of the prosecution case itself would show that the ingredients of Section 108 of BNS is attracted. He also submitted that, the petitioner may not be released on bail at this stage. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegations against the petitioner is very serious. But, the **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:26794 ``` ``` BAIL APPL. NO.4260 OF 2025 ``` `4` petitioner is in custody from 12.02.2025. Petitioner earlier filed a bail application before this Court as B.A No.2763/2024. After hearing both sides, this Court was not inclined to grant bail, considering the seriousness of the case. At that stage, the counsel for the petitioner sought permission to withdraw the bail application and move it again. Accordingly, the present bail application is filed. Considering the facts and circumstances of the case, I think, the petitioner can be released on bail after imposing stringent conditions. 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 ``` 2025:KER:26794 ``` ``` BAIL APPL. NO.4260 OF 2025 ``` ``` 5 ``` **==> picture [58 x 58] intentionally omitted <==** 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 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 **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:26794` ``` BAIL APPL. NO.4260 OF 2025 ``` `6` 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 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. ``` BAIL APPL. NO.4260 OF 2025 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:26794` ``` 7 ``` 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 decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 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 **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:26794` ``` BAIL APPL. NO.4260 OF 2025 ``` `8` 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 her 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 applicable in this case also. ``` 2025:KER:26794 ``` ``` BAIL APPL. NO.4260 OF 2025 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 9 ``` 6. 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. 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 conditions. **Sd/P.V.KUNHIKRISHNAN JUDGE** SSG