Bail Can't Be Denied By Ignoring Basic Tenets Of Criminal Jurisprudence Merely Because Accused Was Earlier Released On Bail By Incompetent Court: Kerala HC

The Kerala High Court on Wednesday granted bail to a man accused of smothering and electrocuting his wife to death with an observation that merely because he was earlier released on bail by a court of incompetent jurisdiction would not be a reason keep him in custody, ignoring the basic tenets of criminal jurisprudence that an accused is presumed to be innocent until proven guilty.

"The process and the manner in which the petitioner was granted bail initially, though certainly perverse and against law, the basic principles of grant of bail in a criminal trial cannot be ignored, despite the above illegality brought about by a wrong order," Justice Bechu Kurian Thomas observed. 

Pursuant to his arrest, the accused had approached the High Court which rejected his bail application. However, ten days thereafter, a Magistrate Court granted bail to the petitioner without imposing any conditions. The State sought for cancellation of the bail before the Sessions Court and the Sessions Judge after noticing the illegality in the order passed by the Magistrate in granting bail in a case triable by a Sessions Court and also taking into consideration the fact that the High Court had rejected the bail, cancelled the bail granted to the petitioner. 

However, without surrendering, the petitioner approached the High Court whereby a Single Judge bench affirmed the order cancelling his bail but observed that the petitioner was at liberty to file an application for regular bail before the Sessions Court or the High Court. Pursuant to this, the petitioner preferred the instant bail application.

The counsel appearing for the petitioner, Advocate Renjith B Marar, contended before the Court 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 from the initial grant of bail. It was pointed out that the possibility of trial being completed in the near future is remote and that since there is no allegation of the petitioner having influenced or intimidated the witnesses, he ought to be released on bail.

Counsel appearing for the defacto complainant (grandmother of the deceased) Advocate Ajit G Anjarleker contended that the severity of the crime and the ghastly manner in which the same was executed, require the court to deny bail to the petitioner. It was further submitted that granting bail at this juncture would send a wrong message to society, especially since the petitioner has been the beneficiary of a wrong order, that too, for more than one year and five months.

The Public Prosecutor also raised similar contentions opposing the grant of bail. 

The Court, after perusing through the Case Diary, observed that circumstances prima facie reveal the commission of a ghastly crime, but the facts pointing to the guilt of the accused is a matter to be considered by the trial court at the stage of trial.  

The Court also pointed out that neither the Counsel for the defacto complainant nor the Public Prosecutor could bring to the notice of the Court any peculiar circumstances other than the severity of the crime and the illegality of the initial order granting bail to the petitioner, as reasons to deny bail to the petitioner and for the last one and a half years, the case is pending in the committal stage, and therefore, the possibility of the trial happening in the immediate future is also remote.

Agreeing with the contention raised by the Counsel appearing for the petitioner, the Court reiterated that Bail is the rule, and jail is an exception. 

It further observed that even though the process and the manner in which the petitioner was granted bail initially, though certainly perverse and against law, the basic principles of grant of bail in a criminal trial cannot be ignored, despite the above illegality brought about by a wrong order.

Thereby, the Court granted bail to the petitioner. 

Case Title: Arun v. State of Kerala & Anr.

Citation: 2022 LiveLaw(ker) 477 

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