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2025 DIGILAW 1027 (KER)

Shahin, S/o Abdul Khader v. State of Kerala

2025-04-11

P.V.KUNHIKRISHNAN

body2025
ORDER : This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). 2. Petitioner is an accused in Crime No.962/2024 of Walayar Police Station, Palakkad. The above case is registered against the petitioner alleging offences punishable under Sections 111(1), 112(2)(b), 111(3), 111(4), 111(6), 127(7), 140(1), 310(1), 310(2), 311, 318(1), 318(2), 109 & 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS'). 3. The Prosecution case is that, between 04.12.2024 and 05.12.2024, accused Nos.1 to 9, being members of a criminal gang, kidnapped the defacto complainant and his friend Thomas Jacob from their house. They were taken to the terrace of the first accused's house, where their hands and legs were tied with ropes and cloth was stuffed into their mouths. The accused demanded a ransom of Rs.10,00,000/- threatening to kill them if the money was not paid. Thomas Jacob was forced to transfer 76,500/- via Google pay and hand over a diamond ring under threat. Hence it is alleged that the accused committed the above mentioned offences. The petitioner was arrested on 30.01.2025. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. The counsel appearing for the petitioner submitted that the petitioner is in custody from 30.01.2025. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grants him bail. 6. The Public Prosecutor opposed the bail application. 7. This Court considered the contentions of the petitioner and the Public Public Prosecutor. The petitioner earlier filed a bail application before this Court as evident by Annexure-A2 Order. After hearing both sides in detail, this Court was not inclined to grant bail considering the seriousness of the allegation. Then the petitioner seeks permission to withdraw that bail application with liberty to move it again. This Court granted liberty to move the bail application after three weeks. Accordingly, the present bail application is filed. It is true that the allegation against the petitioner is very serious. But indefinite incarceration of the petitioner is not necessary. Considering the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions. Accordingly, the present bail application is filed. It is true that the allegation against the petitioner is very serious. But indefinite incarceration of the petitioner is not necessary. Considering the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions. If the petitioner commits similar offences in future, the Investigating Officer can file an application before the jurisdictional court to cancel the bail and if such an application is filed, the jurisdictional court can cancel the bail even though this order is passed by this Court. There can be a direction to the petitioner to appear before the Investigating Officer on all Mondays and Fridays at 10 a.m., till the trial begins. 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 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. "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 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".” 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 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. 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 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. 6. Petitioner shall appear before the Investigating Officer on all Mondays and Fridays at 10 a.m., till the trial begins. 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.