IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 4TH DAY OF MAY 2022 / 14TH VAISAKHA, 1944
BAIL APPL. NO. 2095 OF 2022
CRIME NO.1725/2021 OF Thodupuzha Police Station, Idukki
PETITIONER/S:
SIJO JOY
AGED 34 YEARS
ODIYATHINKAL HOUSE, SANKARAPPILLY, KOLAPRA KARA,
KUDAYATHOOR VILLAGE, THODUPUZHA TALUK,
KUDAYATHOOR P.O., IDUKKI, PIN - 685590
BY ADVS.
LIJI.J.VADAKEDOM
REXY ELIZABETH THOMAS
TOM E. JACOB
RESPONDENT/S:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC
PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
2 SUB INSPECTOR OF POLICE
THODUPUZHA POLICE STATION, THODUPUZHA, IDUKKI
DISTRICT, PIN - 685584
BY ADV GOVERNMENT PLEADER
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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B.A. No. 2095 of 2022
P.V.KUNHIKRISHNAN, J.
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B.A.No. 2095 of 2022
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Dated this the 4th day of May, 2022
ORDER
This Bail Application is filed under Section 438 of Criminal Procedure Code.
2. The petitioner is the accused in Crime No.1725 of 2021 of Thodupuzha Police Station. The above case is registered for the offences punishable under Section 354A of IPC and Section 67 of the Information Technology Act, 2000.
3.The prosecution case is that the accused person who had a grudge on the de facto complainant's mother purposefully without her permission started a facebook account in in her name and used her photo as profile picture without her knowledge or permission and also posted obscene pictures in the fake facebook account -3- B.A. No. 2095 of 2022 with intention of causing defamation to her and her family members and thereby committed the above offences.
4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the allegation against the petitioner is false. The counsel submitted that the matrimonial relationship of the petitioner and his wife is strained and the cases are also pending. The present complaint is filed by the brother of the petitioner's wife. The counsel for the petitioner submitted that the petitioner is ready to abide any condition if this Court grant him bail. The learned Public Prosecutor seriously opposed the bail application. The public prosecutor submitted that a fake facebook account of the mother-in-law of the petitioner is created and obscene pictures are uploaded in that facebook account. It is true that the allegations against the petitioner are serious. But considering the facts and circumstances of the case custodial interrogation of the petitioner is not -4- B.A. No. 2095 of 2022 necessary. There can be a direction to the petitioner not to commit similar offence, and if there is any such incident happens, the prosecution or the victim in this case are free to approach the competent court for cancellation of the bail application.
5. 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 in as much 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.
6. 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. -5- B.A. No. 2095 of 2022 "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 becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused."
7. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:
1. The petitioner shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation. -6-
B.A. No. 2095 of 2022
2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned.
3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
4. Petitioner shall not leave India without permission of the jurisdictional Court. -7- B.A. No. 2095 of 2022
5. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he suspected.
6. Petitioner shall appear before the investigating officer on all Mondays and Fridays at 10 am till final report is filed.
7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated.
sd/-
P.V.KUNHIKRISHNAN JUDGE das