Kerala High Court
Nikhil vs State Of Kerala on 7 May, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943
Bail Appl..No.9156 OF 2020
CRIME NO.284/2020 OF Changaramkulam Police Station , Malappuram
PETITIONER/ACCUSED:
NIKHIL
AGED 23 YEARS
S/O SREENARAYANAN, MULLAPPILLY HOUSE,
THIRUVENKIDAM, GURUVAYOOR VILLAGE,CHAVAKKAD TALUK,
THRISSUR DISTRICT-680101.
680101
BY ADV. SRI.V.V.JOY
RESPONDENT/:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA
682031
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
P.P.SMT.M.K.PUSHPALALTHA
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
07.05.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No. 9156 of 2020 2
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.9156 of 2020
-------------------------------
Dated this the 7th day of May, 2021
ORDER
This Bail Application filed under Section 438 of Criminal
Procedure Code (Cr.P.C.) was heard through Video Conference.
2. Petitioner is the accused in Crime No. 289/2020 of
Changaramkulam Police Station. The above case is registered against
the petitioner alleging offence punishable under Section 67 B of the
Information Technology Act.
3. The Prosecution case is that the first and second accused
started a new Whatsapp group called 'Acharavedi'. The second
accused added 184 members in the group and accordingly shared
sexually coloured videos of children to this group.
4. Heard counsel for the petitioner and the Public Prosecutor.
The counsel for the petitioner submitted that even if the entire
allegations are accepted, the offence under Section 67B of the
Information Technology Act is not attracted. The counsel submitted
that the petitioner approached this Court earlier as per Annexure A
order and this Court granted liberty to file a fresh bail application
once the petitioner return to India. The counsel submitted that the
petitioner is now in India. The counsel submitted that the petitioner
is ready to abide any conditions if this Court grant him bail. The
Public Prosecutor opposed the bail application.
5. After hearing both sides, I think, this bail application can
be allowed on stringent conditions. Whether the offence under
Section 67B of the Information Technology Act is attracted or not is a
matter to be investigated by the investigating officer. I don't want to
make any observation on the merit of the case. Considering the facts
and circumstances of the case, I think this bail application can be
allowed on stringent conditions.
6. Moreover, the 2nd wave of COVID-19 is spreading in the
country and the citizens are facing serious difficulties. In the state of
Kerala, the 2nd wave of the pandemic is creating lot of problems and
even the day-to-day life of the citizens are affected. Everyday, about
25,000 people are tested positive with COVID-19. In such
circumstances, this Court has to consider this fact also while
considering bail applications. The life is more important than
anything. Therefore, I am considering this bail application based on
the above pandemic situation.
7. Moreover, considering the need to follow social distancing
norms inside prisons so as to avert the spread of the novel Corona
Virus Pandemic, the Hon'ble Supreme Court in Re: Contagion of
COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of
2020) and a Full Bench of this Court in W.P(C)No.9400 of 2020 issued
various salutary directions for minimizing the number of inmates
inside prisons. These happened during the 1 st wave of COVID-19
season.
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, this Bail
Application is allowed with the following directions:
1. The petitioner shall appear before the
Investigating Officer within three weeks from today
and shall undergo interrogation;
2. After interrogation, if the Investigating
Officer proposes to arrest the petitioner, he shall be
released on bail 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 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. The petitioner shall not leave India
without permission of the Court;
5. The petitioner shall not commit an
offence similar to the offence of which he is
accused, or suspected, of the commission of which
he is suspected;
6. The petitioner shall strictly abide by the
various guidelines issued by the State Government
and Central Government with respect to keeping of
social distancing in the wake of Covid 19 pandemic;
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.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
al/-+
