Shanu v State of Kerala & Another

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 23RD DAY OF NOVEMBER 2020 / 2ND AGRAHAYANA, 1942** ## **Bail Appl..No.7742 OF 2020** **CRIME NO.1499/2020 OF Pallithottam Police Station , Kollam** ## **PETITIONER/ACCUSED:** **SHANU AGED 26 YEARS LOVELAND, KAUMUDI NAGAR PALLITHOTTAM PO KOLLAM 691006 BY ADV. SRI.M.RAJESH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682031 2 SUB INSPECTOR OF POLICE, PALLITHOTTAM POLICE STATION, PALLITHOTTAM P.O., KOLLAM, PIN-691006.** ## **OTHER PRESENT:** ## **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 ## B.A.No.7742 of 2020 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.7742 of 2020 ------------------------------Dated this the 23[rd ] day of November, 2020 ## **O R D E R** This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the 3[rd] accused in Crime No.1499 of 2020 of Pallithottam Police Station, Kollam. The above case is registered against the petitioner and others alleging offences punishable under Sections 294(b), 341, 323, 324, 326, 506(ii), 201 and 308 r/w. Section 34 IPC. The offence under Section 27 of the Arms Act is also alleged. 3. The prosecution case is that on 15.9.2020 at 12.15 pm the petitioner and the other accused formed themselves into an unlawful assembly with common object attacked the de facto complainant and in pursuant to the same, 1[st] accused ## B.A.No.7742 of 2020 ## 3 wrongfully restrained the de facto complainant and uttered obscene words. It is also alleged that the 1[st] accused assaulted on the head of the de facto complainant using a metallic block. It was alleged that the other accused also assaulted the de facto complainant. The specific overt act attributed to the petitioner who is the 3[rd] accused is that he threatened the defacto complainant with a sword. 4. Heard the counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from 4.10.2020 onwards. The counsel submitted that there is no serious overt act attributed against the petitioner in this case. The main overt act is attributed to the 1[st] and 2[nd ] accused. The counsel submitted that the only allegation against the petitioner is that he threatened the victim by showing a sword. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grant B.A.No.7742 of 2020 4 him bail. The counsel also submitted that the other cases registered against the petitioner are all false cases and in almost all cases minor offence are alleged against the petitioner. The counsel 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 9 other cases registered against the petitioner. The Public Prosecutor submitted that there is criminal antecedents against the petitioner. The Public Prosecutor submitted that the petitioner may not be released on bail at this stage. The Public Prosecutor also submitted that there is proposal to initiate KAAPA proceedings against the petitioner. He is also included in the Rowdy list also. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. This Court as per order dated 9.11.2020 in B.A. No.7334/2020 released the 6[th] accused on bail under Section 439 Cr.P.C. The 6[th] accused was B.A.No.7742 of 2020 5 arrested on the same day on which the petitioner was arrested. The Sessions Court denied bail to the petitioner for the simple reason that the petitioner is involved in some other cases. Of course, the petitioner is involved in some other cases. But some of the cases registered against the petitioner are minor offences. The Apex Court in **Moulana Mohammed Amir Rashadi Vs. State of U.P.(2012 (2) SCC 382** ) observed that merely on the basis of criminal antecedents a claim of bail cannot be rejected. I don't want to make any observation on the merit of the case. Considering the entire facts and circumstances of the case and considering the fact that the petitioner is in custody from 4.10.2020, the petitioner can be released on bail. But I make it clear that the petitioner shall not enter the jurisdiction limits of Pallithottam Police Station for a period of two months from the date on which he is released from jail. 8. Considering the entire facts and circumstances of the case, I think this bail application can be allowed especially 6 ## B.A.No.7742 of 2020 because of the fact that the petitioner is in custody from 4.10.2020. 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. 11. Considering the dictum laid down in the above 7 B.A.No.7742 of 2020 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 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 B.A.No.7742 of 2020 8 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 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. The petitioner shall appear before the Investigating Officer on all Mondays at 10 a.m for a period of two months. 8. Petitioner shall not enter the jurisdictional limits of Pallithottam Police Station for a period of two months from the date of his release from the jail. I make it clear that the petitioner can enter the jurisdictional B.A.No.7742 of 2020 9 limits of Pallithottam Police station for the purpose of appearing before the investigating officer in connection with the investigation of the case. 9. 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** al/-