Shan v. State of Kerala

B.A.No.5160 of 2025 1 2025:KER:31152 **==> picture [58 x 58] intentionally omitted <==** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 10[TH] DAY OF APRIL 2025 / 20TH CHAITHRA, 1947** **BAIL APPL. NO. 5160 OF 2025** **CRIME NO.114/2025 OF Ochira Police Station, Kollam** **PETITIONER(S)/ACCUSED 1:** **SHAN AGED 28 YEARS** **S/O JAFAR, KUNNU THARAYIL VEEDU, PRAYAR SOUTH MURI, CLAPANNA VILLAGE, KOLLAM, PIN - 690525** **BY ADVS. SAYUJYA RADHAKRISHNAN K.R.RAJEEV KRISHNAN** ## **RESPONDENT(S)/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY ADV. SRI.NOUSHAD K A, R.PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **10.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.5160 of 2025 2 2025:KER:31152 **==> picture [58 x 58] intentionally omitted <==** ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.5160 of 2025 ------------------------------- Dated this the 10th day of April, 2025 ## **O R D E R** This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the 1st accused in Crime Nos.114/2025 of Oachira Police Station, Kollam. The above case is registered against the petitioner alleging offences punishable under Sections 189(2), 191(2), 191(3), 190, 126(2), 296(b), 351(2), 115(2), 118(1), 117(2), 110 & 309(4) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS'). 3. The prosecution case is that, on 17.01.2025, at around 9:40 PM, at Clappana Othalathum Moodu Junction, the petitioner, along with Accused Nos.2 to 4, intercepted the scooter ridden by the defacto complainant and his friend Suhail while traveling. The petitioner allegedly took the key from their B.A.No.5160 of 2025 3 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:31152 scooter, hurled abuses at them, and questioned whether the defacto complainant was the brother of “Al Meen”. He then attempted to assault the defacto complainant on the head using a nunchaku. However, as the defacto complainant moved his head, the blow landed on his right shoulder. The petitioner further assaulted the defacto complainant on his face, while the 2nd accused kicked his right leg. When Suhail attempted to flee, the 4th accused struck him with an iron rod, and the petitioner, along with the other accused, assaulted Suhail on the head with the nunchaku. Subsequently, the accused forcefully took possession of the defacto complainant's scooter and fled the scene. The attack was allegedly motivated by previous enmity between the petitioner and the brother of the defacto complainant. As a result, they are alleged to have committed the aforementioned offences. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. Counsel for the petitioner submitted that the petitioner is in custody from 05.02.2025. He is in custody for B.A.No.5160 of 2025 4 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:31152 about 65 days. The counsel submitted that the wife of the petitioner is pregnant and the presence of the petitioner is necessary. The counsel also submitted that the petitioner is ready to abide any conditions if this Court grant him bail. 6. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that there are criminal antecedents to the petitioner and he is involved in several other cases. But the Public Prosecutor submitted that the cases registered against the petitioner are from the year 2017 to 2021. 7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner is serious. There is criminal antecedents to the petitioner also. But the fact remains that the petitioner is in custody for about 65 days. The offences alleged are under Sections 118(1) and 110 of the BNS. Considering the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions. There can be a direction to the petitioner to appear B.A.No.5160 of 2025 5 2025:KER:31152 **==> picture [58 x 58] intentionally omitted <==** before the Investigating Officer on all Mondays at 10 am, till the final report is filed. 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 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 B.A.No.5160 of 2025 6 2025:KER:31152 **==> picture [58 x 58] intentionally omitted <==** 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 modification that the bail can be granted if the conditions in the statute are satisfied. 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 B.A.No.5160 of 2025 7 2025:KER:31152 **==> picture [58 x 58] intentionally omitted <==** exception is, at times, followed in breach. 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".” 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. 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 co-operate with the investigation and shall not, directly or - indirectly make any inducement, threat or B.A.No.5160 of 2025 8 2025:KER:31152 **==> picture [58 x 58] intentionally omitted <==** promise to any person acquainted with the facts of the case so as to dissuade him 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. Petitioner shall appear before the Investigating Officer on all Mondays at 10 am, till the final report is filed. 6. 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. B.A.No.5160 of 2025 9 2025:KER:31152 **==> picture [58 x 58] intentionally omitted <==** 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. 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** DM