High Court of KeralaSingle Judge2020-04-29Bail granted / bail application allowed with co...

Vishnu s/o Suresh and Jishnu s/o Suresh vs State of Kerala

Case / Petition Number:B.A NO.2393 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2020-04-29
Court Decision / Holding: This bail application is allowed; bail granted with conditions as detailed in the order (i) release on furnishing permanent address and phone numbers, and undertaking to execute the bail bond before the jurisdictional court within one week of re-opening; (ii) bond of Rs.50,000 with two solvent sureties for similar sum; (iii) petitioner to appear before IO as required; (iv) not tamper with evidence or influence witnesses; (v) not commit any offence while on bail; (vi) not leave Kerala without permission; (vii) SHO may move to cancel bail if any condition is violated.
Final Disposition: Bail granted / bail application allowed with conditions.

Parties to the Case

Appellants / Petitioners

Vishnu s/o Suresh
Jishnu s/o Suresh

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Sub Inspector of Police, Kaipamangalam Police Station, Thrissur District

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Vishnuprasad Nair

Counsels for Respondents

• Sri Ajith Murali, Public Prosecutor

Case Synopsis & Summary

Vishnu and Jishnu, accused in Kaipamangalam Police Station Case No. 880/2020, moved this bail plea under Section 439 CrPC before the Kerala High Court. The petitioners are charged with offences including sections 341, 323, 324, 294(b), 506, 326 and 308 read with section 34 IPC, arising from an incident on 18.12.2019 when the neighbours clashed and the defacto complainant sustained nasal fracture and other injuries after being attacked with an iron rod. They were arrested on 14.03.2020; the Judicial First Class Magistrate Kodungalloor had dismissed their anticipatory bail application and remanded them. The petitioners claim the allegations are false and driven by a boundary dispute; they contend prior to the incident there was long-standing animosity but that the recovery has now been effected and the final report filed. The Public Prosecutor asserts the investigation is complete and the final report has been filed, so bail would require strict conditions. The High Court relied on Supreme Court bail jurisprudence—Sanjay Chandra v. CBI, Nikesh Tarachand Shah v. Union of India, Gurbaksh Singh Sibbia v. State of Punjab, and P. Chidambaram v. Directorate of Enforcement—and COVID-19 related directions for decongesting prisons. After assessing the facts, the court concluded the case warrants bail and granted it, subject to detailed conditions to ensure presence, non-tampering, and the prevention of repeated offenses. The order emphasizes bail as rule and jail as exception in the pandemic context.

Provisions of Law Cited

Section 439 of CrPCSections 341, 323, 324, 294(b), 506, 326, 308 read with Section 34 IPC

Legal Doctrines & Maxims

Bail is the rule and jail is the exception (Sanjay Chandra v. CBI)
Right to personal liberty under Article 21 of the Constitution
Gurbaksh Singh Sibbia v. State of Punjab
Magna Carta principles cited in Nikesh Tarachand Shah v. Union of India
COVID-19 prison decongestion directives (In Re: Contagion of COVID-19 Virus In Prisons)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the allegations are false and motivated by a boundary dispute between neighbours. There was no recovery at the time of their earlier bail application, and the final report has been filed now. They emphasize that they have already spent about 45 days in custody and the case involves a non-serious offence in the context of COVID-19; They rely on the guiding principles of bail being the rule and jail the exception, as reaffirmed by the Supreme Court in Sanjay Chandra v. CBI and Nikesh Tarachand Shah v. Union of India, and by Gurbaksh Singh Sibbia. They cite that the investigation is nearly complete and there is no evidence of flight risk; The boundaries dispute suggests personal grievance rather than flight risk; They propose that if bail is granted, it should include conditions such as furnishing address, phone numbers, bonds, two sureties and attendance before IO; They promise to cooperate and not tamper with witnesses; They assert that a humane approach during the COVID-19 crisis should permit release under the monitoring of police.

Contentions of Respondents

The State contends that the investigation is complete and the final report has been filed; bail, if granted, must be subject to stringent conditions to prevent tampering with witnesses and to ensure the petitioners do not commit new offences; They caution that even though the patient has matured and the evidence has been recovered, the gravity of the offences must be safeguarded; They highlight guidelines from the Supreme Court and Kerala High Court to decongest prisons in the wake of COVID-19; They emphasize the petitioners are charged with serious offences including 326 and 308; They maintain that the Court should consider bail only with adequate conditions or alternative measures; They rely on the fact that the final report has been filed, recovery has been effected; However bail with barrier conditions will ensure the ends of justice.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Sanjay Chandra v. CBI	2012 (1) SCC 40	Positive	Cited to underscore bail as a rule and imprisonment as an exception.
Nikesh Tarachand Shah v. Union of India	2018 (11) SCC 1	Positive	Referenced for reaffirmation of bail principles post-Gurbaksh Singh Sibbia.
Gurbaksh Singh Sibbia v. State of Punjab	1980) 2 SCC 565	Positive	Foundational bail jurisprudence cited in support of bail rights.
P. Chidambaram v. Directorate of Enforcement	2019 SCC Online SC 1549	Positive	Fortifies the bail proposition within the Supreme Court framework.
In Re: Contagion of COVID-19 Virus In Prisons	Suo Motu Writ Petition (C) No.1 of 2020	Positive	COVID-19 related directives on prison decongestion and bail considerations.
W.P.(C) No.9400 of 2020 (Suo Motu)	Full Bench order dated 25.03.2020 in W.P.(C) No.9400 of 2020	Positive	Full Bench directions to de-congest prisons in view of the pandemic.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **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** **B.A NO.2393 OF 2020** **(Crime No. 880/20 of Kaipamangalam Police Station, Thrissur District)** **Name and Address of the Petitioner/Accused Nos. 1 & 2:** - **1.Vishnu, S/o. Suresh, Chirattappurackal House, Vazhiambalam Desom, Kaipamangalam PO, Thrissur.** - **2.Jishnu, S/o. Suresh, Chirattappurackal House, Vazhiambalam Desom, Kaipamangalam PO, Thrissur.** **By Adv. Vishnuprasad Nair** **Name and Address of the Respondents/State:** - **1.State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam – 682031.** - **2.Sub Inspector of Police, Kaipamangalam Police Station, Thrissur District – 680681.** ## **BY PUBLIC PROSECUTOR SRI.AJITH MURALI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.04.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A NO.2393 OF 2020 2 ## **ORDER** This is an application filed under Section 439 of the Code of Criminal Procedure. 2. The petitioners are accused 1 and 2 in Crime No.880/2020 of the Kaipamangalam Police Station. The petitioners are alleged to have committed the offences punishable under Sections 341, 323, 324, 294(b), 506, 326, 308 r/w Section 34 of the Indian Penal Code. 3. The prosecution case, in brief, is that: the petitioners and the defacto complainant are neighbours. On 18.12.2019, the petitioners attacked the defacto complainant with an iron rod and they attempted to hit him on his head. However, the defacto complainant sustained a fracture on his nasal bone and other injuries. Thus, the petitioners have committed the above offences. 4. The petitioners were arrested on 14.03.2020. Their application for bail was dismissed by the Judicial First Class 3 B.A NO.2393 OF 2020 Magistrate, Kodungalloor by order dated 19.03.2020 in Crl.M.P.No.1202 of 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 petitioners and the defacto complainant are neighbours. The allegations levelled against the petitioners are false. There is a boundary dispute between the petitioners and the defacto complainant, and it is out of the said animosity that the present crime has been registered. The petitioners were arrested on 14.03.2020. The petitioners are in incarceration for the last 45 days. This Court dismissed the application for anticipatory bail on the ground that the recovery has not been effected. Now, the recovery has been effected, and the final report has been filed. Hence, the petitioners may be enlarged on bail. 7. The learned Public Prosecutor submitted that the investigation is complete and the final report has been filed. B.A NO.2393 OF 2020 4 Hence, even if the petitioners are 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 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 B.A NO.2393 OF 2020 5 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. 11. On a cumulative appreciation of the facts and circumstances of the case and after hearing the counsel for the petitioner and the learned Public Prosecutor and considering the fact that the investigation in the case is almost complete; that the final report has been filed; that the recovery has been effected; the legal proposition laid down by the Honourable B.A NO.2393 OF 2020 6 Supreme Court in the afore cited 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 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 B.A NO.2393 OF 2020 7 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) each, with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court. (iii) The petitioner shall appear before the Investigating Officer as and when required by him . (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. 8 B.A NO.2393 OF 2020 (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 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** kkj