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2025 DIGILAW 600 (KER)

Naseer S/o. Musthafa v. State Of Kerala

2025-03-14

P.V.KUNHIKRISHNAN

body2025
ORDER : This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita . 2. Petitioner is the accused in Crime No.1989/2021 of Palakkad Town South Police Station, which is now pending as S.C.No.662/2022 on the files of the Additional Sessions Court-I, Palakkad. The above case is registered against the petitioner alleging offences punishable under Section s 143 , 144,147, 148, 341, 302, 120B, 201, 212, 109, 118 , 465 and 471 read with Section 149 of the Indian Penal Code and Section 27 (3) read with Section 7(a) (b) of the Arms Act . 3. The prosecution case is that, on 15.11.2021 at about 8.45 P.M. due to political animosity, one Sanjith, a worker of Rashtriya Swayam Sevak Sangh (RSS) was attacked by the accused Nos. 1 to 5 with swords and sticks, while he was travelling along with his wife. Due to the injuries inflicted upon the body of the said Sanjith, he died. The crime was initially registered against the five accused persons and during the course of investigation, the petitioner was also implicated as an accused alleging conspiracy. The petitioner was arrested on 23.12.2021. The petitioner is in custody from that day onwards. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody for about 3½ years and the trial in this case is not even started. The counsel submitted that there is no criminal antecedent to the petitioner and the petitioner is ready to abide any conditions if this Court grant him bail. The Public Prosecutor seriously opposed the bail application and submitted that the petitioner is the main conspirator; he is the Secretary of Popular Front of India in that area. The Public Prosecutor also submitted that it is an incident happened in continuation with several other incidents, and if the petitioner is released on bail, he will commit similar offence in future also. 6. This Court considered the contention of the petitioner and the Public Prosecutor. It is a fact that the petitioner is in custody from 23.12.2021. Now three years and three months is already over. This Court directed the Registry to get a report from the trial court about the present stage of the case. 6. This Court considered the contention of the petitioner and the Public Prosecutor. It is a fact that the petitioner is in custody from 23.12.2021. Now three years and three months is already over. This Court directed the Registry to get a report from the trial court about the present stage of the case. The First Additional District Court, Palakkad submitted a detailed report, which is extracted hereunder: “In connection with the above, I am submitting the following report:- At present, 210 Sessions Cases and 120 OA cases filed u/s. 10 of Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act- 2003 are pending before this Court. Out of 210 Sessions Cases, 9 cases are murder cases and 6 cases are under the POCSO Act. Trial in murder cases has already commenced. Other Sessions Cases are also taken up for evidence. Bail applications arising in crime under POCSO Act are also dealt with by this Court. At present as there is direction by the Hon'ble High Court of Kerala to dispose of SC 903/2022 which is a case in connection with the murder of one Muhammed Subair within a time span, that case is given preference. In the said case there are 169 witnesses out of which up to 130 witnesses are so far summoned. Out of 130 witnesses summoned, some witnesses are given up by the Special Public Prosecutor in that case. Trial in that case is not completed as remaining witnesses are to be examined. Actually in SC 662/2022 regarding which report is called, after hearing on the framing of charge on 21.07.2023 it was noticed that three other cases numbered SC 1064/2022, SC 121/2023 and SC 488/2023 which are pending before this Court were in connection with the same crime and so the said cases were clubbed with the above case and thereafter on 08.12.2023 charge was framed read over and explained to the accused and they pleaded not guilty. Thereafter the case could not be scheduled for trial as the properties sent to the Forensic Laboratory were not returned. At present the properties and the chemical examination report are received from the laboratory. In the meantime, another connected case pending as SC 1036/2024, which was a case taken on file on the basis of subsequent committal by the Magistrate court was also ordered to be clubbed along with SC 662/2022. At present the properties and the chemical examination report are received from the laboratory. In the meantime, another connected case pending as SC 1036/2024, which was a case taken on file on the basis of subsequent committal by the Magistrate court was also ordered to be clubbed along with SC 662/2022. In the above case at present trial is scheduled to commence from 05.05.2025 to 19.05.2025. 40 witnesses are summoned. Dates are fixed taking into consideration the convenience of Special Public Prosecutor and counsel for accused. There are 426 witnesses in the above case to be examined from the side of prosecution as revealed from the memorandum of evidence filed from the side of the prosecution. As at present trial in SC 903/2022 and other murder cases is going on, I humbly request that I may be granted one year time to complete the trial in SC 662/2022. This report is submitted for favour of necessary information and orders.” From the above it is clear that the trial in the above case is not even started. It is stated that the trial is scheduled to commence on 05.05.2025 to 19.05.2025. But there are 426 witnesses. The trial court reported that it will take minimum one year to complete the trial in SC No.662/2022. In such circumstances, the question to be decided is whether the petitioner can be released on bail. 7. Article 21 of the Constitution of India says about the personal liberty. It is an admitted fact that for the last three years and three months, the petitioner is in jail without facing trial. No criminal antecedent is alleged against the petitioner. It will take another year to complete trial. In such circumstances, this Court cannot ignore the bail application of the petitioner. Therefore I am forced to grant bail to the petitioner. There can be a direction to the petitioner not to enter Palakkad District, except for the purpose of appearing before the jurisdictional court. With that condition bail can be granted. 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. There can be a direction to the petitioner not to enter Palakkad District, except for the purpose of appearing before the jurisdictional court. With that condition bail can be granted. 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 , 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. 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. 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".” 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 promise to any person acquainted with the facts of the case so as to dissuade him/her 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 petitioner shall not enter Palakkad District, except for the purpose of appearing before the jurisdictional court. 6. 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.