Syam Kuttan @ Syam Raj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 20TH DAY OF NOVEMBER 2020 / 29TH KARTHIKA, 1942** ## **Bail Appl..No.6379 OF 2020** **CRIME NO.664/2019 OF Pangode Police Station , Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **SYAM KUTTAN @ SYAM RAJ AGED 27 YEARS G.S BHAVAN, BLOCK NO. 55, AMBEDKAR COLONY, BHARATHANNOR P.O, NEDUMANGADU, THIRUVANANTHAPURAM DISTRICT -695609** **BY ADV. SRI.S.SREEJITH** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA -682031** **R1 BY SRI.C.N.PRABHAKARAN, SR. PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A.No. 6379 Of 2020** 2 ## **O R D E R** **This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.** **2. The petitioner is the accused in Crime No. 664/2019 of Pangode Police Station, Thiruvananthapuram District. The above case is registered against the petitioner alleging offences punishable under Sections 294(b), 324, 326 and 308 r/w Section 34 of the Indian Penal Code (IPC).** **3. The prosecution case is that, on 28.06.2019 at about 7.20 p.m, in front of the house of the petitioner, when one Sreedharan, a relative of the de facto complainant questioned the 2[nd] accused about the alleged abuse of his wife, the petitioner under the instigation of the 3[rd] accused attempted to hit the defacto complainant with a sword on his head and that the defacto complainant used his hands to resist the blow and thereby he sustained injuries. Hence, the petitioner committed the said offences.** **B.A.No. 6379 Of 2020** 3 **4. Heard the learned counsel for the petitioner and the learned public prosecutor.** **5. The learned counsel for the petitioner submitted that, it is a case and counter case. In both cases, the offence under Section 326 of the IPC is there. The learned counsel submitted that the incident is not happened as alleged by the prosecution. The learned counsel submitted that one of the accused is already released on bail by this Court, under Section 438 of Cr.P.C as is evident by Annexure-A3 order. The learned counsel submitted that the petitioner is ready to abide any conditions, if this Court is granting him bail.** **6. The learned Public Prosecutor seriously opposed the Bail Application. The learned Public Prosecutor submitted that the recovery is not effected in this case. The learned Public Prosecutor also submitted that there is criminal antecedents against the petitioner. Three other criminal cases are already registered against the petitioner in connection with some other incident.** **B.A.No. 6379 Of 2020** 4 **The learned Public Prosecutor submitted that, let the petitioner appear before the Investigating Officer and co-operate with the investigation. There may not be any orders under Section 438 of the Cr.P.C. This is the sum and substance of the argument of the Public Prosecutor.** **7. After hearing both sides, I think this Bail Application can be allowed on stringent conditions. This is a case registered in 2019, There is no case to the prosecution that the petitioner is absconding. Even now, the petitioner is not arrested. One of the accused is already released on bail as is evident from Annexure-A3 order. Admittedly, it is a case and counter case. In both cases, the offence under Section 326 IPC is there. There are allegation and counter allegation about the same incident. I cannot decide, which version is correct while considering an application under Section 438 of the Cr.P.C. Considering the entire facts and circumstances of the case and also considering the fact that, one of the accused is** **B.A.No. 6379 Of 2020** 5 **already released on bail, I think this Bail Application can be allowed on stringent conditions. It is true that the petitioner is involved in three other cases. But, in the light of the decision of the Apex Court in Maulana Mohammed Amir Rashadi Vs. State of Uttarpradesh & Another [2012(2)SCC 382] “merely on the basis of criminal antecedents claims for bail cannot be rejected.”** **8. 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 COVID19 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.** **9. 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** **B.A.No. 6379 Of 2020** 6 **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.** **10. 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 proposes 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 each for the like sum to the** **B.A.No. 6379 Of 2020** 7 **satisfaction of the officer concerned;** **3. 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;** **4. The petitioner shall not leave India without permission of the Court;** **5. The 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** **B.A.No. 6379 Of 2020** 8 **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** **avs**