IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 6^TH DAY OF FEBRUARY 2025 / 17TH MAGHA, 1946 BAIL APPL. NO. 1071 OF 2025 CRIME NO.43/2025 OF Chalissery Police Station, Palakkad PETITIONER/ACCUSED NO.2:

USAMA ASLAM T K AGED 23 YEARS S/O ISMAYIL, THONIKADAVATH HOUSE, THIRUMITTAKODE P.O, KOOTTANAD, PALAKKAD DISTRICT, PIN - 679533 BY ADVS.

SALIM V.S.

A.M.FOUSI A.B.AJIN RESPONDENT / COMPLAINAN T :

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 SRI HRITHWIK CS, SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

06.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

P.V.KUNHIKRISHNAN, J.

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B.A.No.1071 of 2025 ----------------------------------------------

Dated this the 06^th day of February, 2025

ORDER

This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the 2^nd accused in Crime No.43/2025 of Chalissery Police Station. The above case is registered against the petitioner and others alleging offences punishable under Sections 126(2), 118(1), 110, 296(b), 3(5), and

351(3) of the Bharatiya Nyaya Sanhita (for short, BNS). 3. The prosecution case is that due to previous enemity towards the defacto complainant in relation to a dispute occurred during the panchayat mela held on November 2024, the petitioner and other accused persons came in a car on 14.01.2025 at 7:40 pm, crossed the motor bike driven by the defacto complainant at Porutha and blocked the motor bike. On account of the sudden break, the defacto complainant and his friend, travelling in the motor bike fell down and at that time the 1^st accused attacked the defacto complainant and his friend Renjith, using an iron rod and other accused assaulted the defacto complainant’s friend Renjith. The injured sustained serious injuries. Hence it is alleged that the accused committed the offences.

4. Heard counsel for the petitioner and the Public Prosecutor.

5. The counsel for the petitioner submitted that the petitioner is the 2^nd accused and there is no speci act is alleged against the petitioner. The counsel also submitted that the petitioner is ready to abide any conditions if this Court grant him bail. The Public Prosecutor opposed the bail application and submitted that the offence alleged includes Section 3(5) of BNS also. The Public Prosecutor submitted that Section 109 of BNS is also committed. But the Public Prosecutor submitted that as per the report received by him, no criminal antecedent is alleged against the petitioner.

6. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner is serious. But a perusal of the prosecution case show that the fatal injury is inflicted by the 1st accused. It is also true that the petitioner participated in the attack. But considering the involvement of the other accused, the involvement of the petitioner is less. Considering the same and also the fact that there is no criminal antecedent to the petitioner, I think bail can be granted to the petitioner.

7. 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.

8. Recently the Apex Court in Siddharth v State of Uttar Pradesh and Another [2021(5)KHC 353] considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder:

“12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation