IMPORTANT POINT
The principle that bail is the rule and jail is the exception does not apply when the accused is found to be deliberately protracting the trial, especially in cases involving serious charges such as murder.

ORDER :

P.V. Kunhikrishnan, J.

‘Bail is the rule and jail is an exception’ is a settled position of law. But if there are materials to show that an accused is purposefully trying to protract the trial, whether he is entitled to bail, is the question to be decided in this case.

2. Petitioner is the accused in Crime No.442/2019 of the Thodupuzha Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 294(b), 323, 326, 506(i), 302, 201 and 212 of the Indian Penal Code and Section 75 of the Juvenile Justice (Care and Protection of Children) Act. The petitioner filed this bail application under Section 483 of Bharatiya Nagarik Suraksha Sanhita.

3. The prosecution case is that, the 1st accused is a relative of one Biju, who was the husband of the original 2nd accused. Biju died due to a heart attack. Thereafter, the original 2nd accused fell in love with the 1st accused, who is the petitioner herein. Subsequently, the original 2nd accused and the petitioner started to live together in a house. The original 2nd accused had two children in her relationship with her former husband Biju. While the 1st accused and the original 2nd accused were living together, on 27.03.2019, midnight at about 1.30 am, while the children were asleep, the accused locked the house and went out. It is alleged that when they returned by 3 am and woke up the children, the younger child was seen to have urinated in his trousers. It is alleged that the 1st accused asked about the same to the elder child and abused him, brutally manhandling him by kicking and beating him. It is alleged that the petitioner kicked the deceased victim boy aged 7 years, lifted and smashed him on the floor and thereafter gave a blow aiming at his head using a dumbbell and caused a fracture on his ribs and thereafter, he threw him towards the gap in between the almirah and the wall of the bedroom and thereafter he stamped him causing injury on his head. Thereafter he dragged the victim through the floor aiming his head to hit at the leg of the cot with an intention to cause death. As a result of that, the small minor boy sustained serious injuries including intracranial injury and hemorrhage. When the mother of the victim who is the original 2nd accused intervened, the 1st accused fisted on her face and caused injuries. Subsequently, they took him to the Chazhikkad Hospital at Thodupuzha, wherein it was revealed that the boy sustained serious injuries. But the accused deliberately delayed the treatment of the injured child and as a result of the same, the victim succumbed to the injuries at MOC Medical College Hospital at Kolencherry. Hence it is alleged that the accused committed the offence. The 2nd accused subsequently became the approver and, she and the other child are the witnesses in the case.

4. This bail application is filed mainly on three grounds. The first ground is that the petitioner is in custody from 30.03.2019 onwards and therefore the petitioner may be released on bail. The second ground is that the mother of the petitioner is seriously laid up and there is nobody to look after her, and therefore, the petitioner may be released on bail. The third ground is that the petitioner is suffering from different illnesses and for better treatment, he may be released on bail.

5. The learned Public Prosecutor seriously opposed the bail application and filed an objection in which several facts are narrated.

6. It is an admitted fact that the petitioner filed several bail applications before this Court. This Court refused all those bail applications. Now the petitioner is in custody for about 5 years. In such circumstances, this Court directed the trial court to submit a report about the present stage of the main case. The trial court submitted a detailed report on 30.07.2024. It will be better to extract the same :

“In response to the reference cited above I may submit that accused in Cr.No.442/2019 of Thodupuzha police station, pen