Sudhimon Jaffer vs State Of Kerala

Kerala High Court

Sudhimon Jaffer vs State Of Kerala on 21 May, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
   TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                 BAIL APPL. NO. 3877 OF 2024
 CRIME NO.379/2024 OF Thrikkakara Police Station, Ernakulam
PETITIONERS/ACCUSED 2 & 3:

    1     SUDHIMON JAFFER
          AGED 36 YEARS
          S/O. JAFFER, KARIKIMATTOM HOUSE,
          KATTAPPANA,P.O., AMBALAKAVALAM IDUKKI DISTRICT
          NOW RESIDING AT PERKADAVU HOUSE, KUMBALAM,
          ERNAKULAM, PIN - 688532
    2     SHANTHI MOL C.P
          AGED 35 YEARS
          W/O SUDHIMON, KARIKIMATTOM HOUSE,
          KATTAPPANA,P.O., AMBALAKAVALAM IDUKKI DISTRICT
          NOW RESIDING AT PERKADAVU HOUSE, KUMBALAM,
          ERNAKULAM., PIN - 688532
          BY ADVS.
          SALIM V.S.
          A.M.FOUSI
          A.B.AJIN

RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:

          SRI.RIYAL DEVASSY, PP


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 B.A.No.3877/2024

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                   P.V.KUNHIKRISHNAN, J.
                    --------------------------------
                      B.A.No.3877 of 2024
             ----------------------------------------------
            Dated this the 21st day of May, 2024


                              ORDER

This Bail Application is filed under Section 438 of Criminal Procedure Code.

2. Petitioners are the accused in Crime No.379/2024 of Thrikkakara Police Station. The above case is registered alleging offences punishable under Sections 376(2)(n) of the Indian Penal Code and Section 66E of the Information Technology Act, 2000.

3. The prosecution case is that the 1 st accused enticed the defacto complainant with a promise to marry her and took her to Swarna Residency at Vazhakkala on 30.08.2023 and on 28.02.2024. It is the prosecution case that the 1 st accused committed sexual intercourse with defacto complaint on those occasions with the aforesaid promise to marry her and also recorded photos of the defacto complainant. Subsequently, the 1st accused refused to marry her. Hence, it is alleged that the accused committed the offence.

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

5. The counsel for the petitioners submitted that the main allegation is against the 1st accused and no overt act is attributed to the petitioners even as per the FI Statement. The counsel submitted that the petitioners are ready to abide any conditions if this Court grant them bail.

6. The Public Prosecutor submitted that the 1st petitioner is not arrayed as an accused. The Public Prosecutor seriously opposed the bail application of the 2nd petitioner stating that custodial interrogation of the 2 nd petitioner is necessary. According to the Public Prosecutor, the mobile phone of the 2nd petitioner is to be perused because there is an allegation that photos of the victim is there in the mobile phone.

7. This Court considered the contentions of the petitioners and the Public Prosecutor. Admittedly the main allegation is against the 1st accused and he is already released on bail under Section 439 Cr.P.C. There is no serious allegation against the 2nd petitioner. The main contention of the Public Prosecutor is that the mobile phone is to be seized B.A.No.3877/2024 4 from the 2nd petitioner. If that be the case, the 2 nd petitioner can be directed to surrender before the Investigating Officer and thereafter the 2nd petitioner can be released on bail.

8. 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.

9. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, the Bail Application in respect of the 2nd petitioner is allowed with the following directions:

1. The 2nd petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation.

2. After interrogation, if the Investigating Officer proposes to arrest the 2nd petitioner, she shall be released on bail on executing a bond for a B.A.No.3877/2024 5 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 2nd petitioner shall appear before the Investigating Officer for interrogation as and when required. The 2nd 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 her from disclosing such facts to the Court or to any police officer.

4. The 2nd petitioner shall not leave India without permission of the jurisdictional Court.

5. The 2nd petitioner shall not commit an offence similar to the offence of which she is accused, or suspected, of the commission of which she is suspected.

6. Needless to mention, it would be well within the powers of the Investigating Officer to B.A.No.3877/2024 6 investigate the matter and, if necessary, to effect recoveries on the information, if any given by the 2nd petitioner even while the 2nd petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v.State (NCT of Delhi) and another (2020 (1) KHC

663).

7. If any of the above conditions are violated by the 2nd petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court.

8. The submission of the Public Prosecutor that the 1st petitioner is not an accused, is recorded.

sd/-

                                        P.V.KUNHIKRISHNAN
JV                                             JUDGE
 B.A.No.3877/2024

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              APPENDIX OF BAIL APPL. 3877/2024

PETITIONER ANNEXURES
Annexure 1        THE TRUE COPY OF THE FIR DATED
                  17.03.2024   OF    THRIKKAKARA POLICE
                  STATION, ERNAKULAM.
Annexure 2        THE TRUE COPY OF THE FIS DATED
                  17.03.2024 IN CRIME NO 379/2024 OF
                  THRIKKAKARA POLICE STATION.