Bail should be granted when exceptional circumstances exist, alongside the principle that an accused is presumed innocent until proven guilty, regardless of the severity of the alleged crime.

ORDER

Petitioner is the accused in Crime No.2787/2020 of Vellarada Police Station, alleging offences punishable under Section 302 of the Indian Penal Code,1860.

2. The prosecution allegation is that petitioner, a man of 29 years had married a wealthy lady of 51 years on 19.10.2021 and with an intention to grab her wealth, smothered and electrocuted his wife on 26.12.2022 and thereby committed the offences alleged. The prosecution further alleges that the incident commenced with the deceased demanding for a child through the petitioner and in the quarrel that ensued, petitioner gagged her mouth and nose and when she became unconscious, dragged her near a switch board and wrapped one end of the wire which was connected to a bulb on to her wrist and thus electrocuted her and thereby caused her death.

3. Petitioner was arrested on the next day itself and the bail application was also rejected by this Court on 23.03.2021 as per the order in BA No.1919/2021. However, on 03.04.2021, just ten days after this Court rejected the bail application, the learned Magistrate granted bail to the petitioner, that too without imposing any conditions. The bail was granted, presumably, due to change of circumstances, as the final report was filed on

22.03.2021, and this Court had not been appraised of the same when the bail application was rejected on 23.03.2021.

4. The State sought for cancellation of the bail before the Sessions Court, through Crl.R.P. No.13/2022, while the defacto complainant, who is the grandmother of the deceased, moved an application before this Court as Crl.M.C. No.2541/2021 seeking cancellation of bail.

5. The learned Sessions Judge, by order dated 10.06.2022 in Crl.R.P.No.13/2022 , after noticing the illegality in the order of the learned Magistrate, in granting bail in a case triable by a court of sessions, that too after the High Court had rejected the bail, and relying upon the decision in Jayaraj Vs. State of Kerala [2009 (5) KHC 577 cancelled the bail granted to the petitioner.

6. Petitioner ought to have surrendered thereafter. However, without surrendering, petitioner approached this Court through Crl.M.C. 4067/2022 and by order dated 29.07.2022, a learned Single Judge of this Court affirmed the order cancelling the bail, but observed that the petitioner is at liberty to file an application for regular bail, invoking Section 439 of the Cr.PC, either before this Court or before the Sessions Court, within a period of ten days and further directed that the petitioner shall not be arrested till the said bail application is disposed of. Pursuant to the aforementioned order, this bail application was preferred.

7. When the matter came up for consideration initially, this Court expressed the doubt on the maintainability of the bail application itself, since the petitioner had not surrendered and the elementary principle of the requirement of the accused ‘to be in custody’ for applying for regular bail was pointed out.

8. Sri.Renjith B Marar, learned Counsel for the petitioner referring to the decision of the Supreme Court inSundeep Kumar Bafna Vs. State of Maharashtra and Another [(2014) 16 SCC 623 ] and submitted that, surrender before the High Court can, in exceptional circumstances, be deemed to be sufficient to enable consideration of the regular bail application. In view of the aforesaid proposition, this Court directed the petitioner to surrender before this Court for considering the bail application.

Accordingly, the petitioner has presented himself before this Court today.

9. I have heard the learned Counsel for the petitioner as well as Sri. Ajit G Anjarleker, learned Counsel for the defacto complainant and Sri.K.A.Noushad, learned Counsel for the respondent.

10. Sri.Renjith B Marar, learned Counsel for the petitioner contended that, even if the petitioner was granted bail by a wrong order of the Magistrate, the same is not a reason to deny him bail at this juncture, especially since a long period of time has elapsed