Bail is a right, not a privilege, and should be granted unless there are compelling reasons to deny it.

ORDER

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( ‘the BNSS ’ for short) 2023, by the 2nd accused in Crime No. 495/2024 of the Pothanikadu Police Station, Ernakulam, which is registered against the four accused persons for allegedly committing the offences punishable under Sections 109 (1), 118(1), 126(2) and 296(b) read with Sec.3(5) of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’, for short). The petitioner was arrested on 22.7.2024.

2. The crux of the prosecution case is that: on 19.7.2024, at around 21.30 hours, the accused, in furtherance of their common intention to murder the de facto complainant, the first accused wrongfully restrained the de facto complainant and uttered obscene words at the de facto complainant and the second accused hit him with an iron block on his head and cheek, and when he fell down, the first accused kicked him and the second accused again hit him with an iron block on his head and he suffered grievous injuries. When the de facto complainant’s friend attempted to rescue him, the accused 3 and 4 assaulted him. Thus, the accused have committed the above offences.

3. Heard; Sri.Nireesh Mathew, the learned counsel appearing for the petitioner and Smt.M.K Pushpalatha, the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the offence under Sec.109(1) of the BNS. In fact, the petitioner had filed a similar application before this Court as per BA No.6277/2024. By Annexure A4 order, this Court dismissed the petitioner’s application , but enlarged the accused 1, 3 and 4 on bail. The only reason to deny bail was that the investigation was in progress so far as it relates to petitioner. The petitioner has been in judicial custody for the last 43 days, the investigation in the case is complete and recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

5. The learned Public Prosecutor seriously opposed the application. She submitted that the investigation in the case is in progress. She also stated that if the petitioner is enlarged on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. 6. The prosecution case is that, the accused in furtherance of their common intention, wrongfully restrained the de facto complainant and the petitioner assaulted him with an iron block on his head and cheek and he suffered grievous injuries. Taking into consideration the above aspect, this Court dismissed the petitioner’s earlier application for bail on 8.8.2024. The fact remains that, the petitioner has been in judicial custody for the last 43 days, the investigation in the case is complete and recovery has been effected. Furthermore, the petitioner does not have have any criminal antecedents.

7. Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has 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 its experience, 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 the 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, the Honourable Supreme 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 recognize the principle that “bail is the rule and jail is an exception.

8. Similarly, in Jalaluddin Khan v Union of India, [2024 INSC 604] the Honourable Supreme Court has o