Kerala High Court

Anez Anzare vs State Of Kerala on 25 April, 2022

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
        MONDAY, THE 25TH DAY OF APRIL 2022 / 5TH VAISAKHA, 1944
                   BAIL APPL. NO. 2158 OF 2022
   CRIME NO.267/2022 OF Palarivattom Police Station, Ernakulam

PETITIONER/ACCUSED:

             ANEZ ANZARE,AGED 37 YEARS
             S/O ANZARE,
             PALLIPARABMIL ERAKKATHIL HOUSE,
             PADAMUGAL P.O., KAKKANAD, PIN - 682021

             BY ADVS.
             S.RAJEEV
             R.SUDHA
             V.VINAY
             M.S.ANEER
             SARATH K.P.
             D.FEROZE
             C.J.JIYAS


RESPONDENT/STATE:

    1        STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
             PIN - 682031

    2        STATION HOUSE OFFICER
             PALARIVATTOM POLICE STATION,
             ERNAKULAM DISTRICT
             (CRIME NO. 267/2022 OF PALARIVATTOM
             POLICE STATION, ERNAKULAM DISTRICT), PIN - 682025

    3        JENIKA CHARITY FOUNDATION ( SOUGHT TO BE IMPLEADED )
             ( SOUGHT TO BE IMPLEADED )

             R1 & R2 BY SMT. SEETHA.S. PUBLIC PROSECUTOR
             R3 BY ADV. R. SUDHA

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2022,
ALONG WITH Bail Appl..2162/2022, 2163/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A.No.2158/2022 & con.cases          2

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
     MONDAY, THE 25TH DAY OF APRIL 2022 / 5TH VAISAKHA, 1944
                        BAIL APPL. NO. 2162 OF 2022
   CRIME NO.266/2022 OF Palarivattom Police Station, Ernakulam

PETITIONER/ACCUSED:

               ANEZ ANZARE
               AGED 37 YEARS
               S/O ANZARE,
               PALLIPARABMIL ERAKKATHIL HOUSE,
               PADAMUGAL P.O
               KAKKANAD, PIN - 682021

               BY ADVS.
               S.RAJEEV
               V.VINAY
               M.S.ANEER
               SARATH K.P.
               D.FEROZE
               C.J.JIYAS

RESPONDENT/STATE:

      1        STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
               PIN - 682031

      2        STATION HOUSE OFFICER
               PALARIVATTOM POLICE STATION,
               ERNAKULAM DISTRICT
               (CRIME NO. 267/2022 OF PALARIVATTOM
               POLICE STATION, ERNAKULAM DISTRICT), PIN - 682025

               BY SRI.M.C. ASHI PUBLIC PROSECUTOR

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.04.2022, ALONG WITH Bail Appl.2158/2022 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A.No.2158/2022 & con.cases          3

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
     MONDAY, THE 25TH DAY OF APRIL 2022 / 5TH VAISAKHA, 1944
                        BAIL APPL. NO. 2163 OF 2022
  CRIME NO.268/2022 OF Palarivattom Police Station, Ernakulam
PETITIONER/ACCUSED:

               ANEZ ANZARE
               AGED 37 YEARS
               PALLIPARABMIL ERAKKATHIL HOUSE,
               PADAMUGAL P.O
               KAKKANAD, PIN - 682021

               BY ADVS.
               S.RAJEEV
               V.VINAY
               D.FEROZE
               C.J.JIYAS
               M.S.ANEER
               SARATH K.P.


RESPONDENT/STATE:

      1        STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
               PIN - 682031

      2        STATION HOUSE OFFICER
               PALARIVATTOM POLICE STATION,
               ERNAKULAM DISTRICT
               (CRIME NO. 268/2022 OF PALARIVATTOM
               POLICE STATION, ERNAKULAM DISTRICT -, PIN - 682025

               BY SRI.M.C. ASHI PUBLIC PROSECUTOR

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.04.2022, ALONG WITH Bail Appl..2158/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A.No.2158/2022 & con.cases        4

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
     MONDAY, THE 25TH DAY OF APRIL 2022 / 5TH VAISAKHA, 1944

                  BAIL APPL. NO. 2167 OF 2022
  CRIME NO.274/2022 OF Palarivattom Police Station, Ernakulam
PETITIONER/ACCUSED:

               ANEZ ANZARE
               AGED 37 YEARS
               PALLIPARABMIL ERAKKATHIL HOUSE,
               PADAMUGAL P.O
               KAKKANAD, PIN - 682021

               BY ADVS.
               S.RAJEEV
               V.VINAY
               M.S.ANEER
               SARATH K.P.
               D.FEROZE
               C.J.JIYAS


RESPONDENT/S:

      1        STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
               PIN - 682031

      2        STATION HOUSE OFFICER
               PALARIVATTOM POLICE STATION,
               ERNAKULAM DISTRICT
               (CRIME NO. 274/2022 OF PALARIVATTOM
               POLICE STATION, ERNAKULAM DISTRICT)., PIN - 682025

               BY SRI.T.R.RENJITH SR.PUBLIC PROSECUTOR

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.04.2022, ALONG WITH Bail Appl..2158/2022 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A.No.2158/2022 & con.cases               5

                                   ORDER

[Bail Appl. Nos.2158/2022, 2162/2022, 2163/2022, 2167/2022]

These petitions are filed by the same person seeking anticipatory bail in 4

cases registered against him before the Palarivattom Police Station.

2. B.A.No.2158/2022 arises out of Crime No.267/2022 of

Palarivattom Police Station alleging commission of offences under Sections

354, 354-B, 354-A(1)(i) and 354-A(2) of the Indian Penal Code. The gist of the

allegations against the petitioner, in Crime No.267/2022 is that on 29.8.2021,

when the de facto complainant had gone to the Bridal Studio of the petitioner

for makeup, the petitioner had inappropriately touched her on her private parts

under the guise of applying the makeup on her neck etc. It is also alleged that

the petitioner inappropriately pulled the t-shirt of the de facto complainant.

Under the guise of applying the make-up, the petitioner looked at the private

parts of the de facto complainant and thereby, he committed the offences

alleged against him. The complaint was registered based on an e-mail from the

de facto complainant who is now living abroad.

3. In B.A.No.2162/2022 arising out of Crime No.266/2022 of

Palarivattom Police Station, the allegation against the petitioner is that on

12.9.2015, the petitioner made the de facto complainant stand before him

wearing a sari blouse and underskirt alone and also asked her various

questions with sexual innuendos and also as to whether she had any sexual

relationship with her fiance earlier and also touched her on her private parts

and pulled her underclothing and thereby he committed the offences under

Sections 354, 354A(1)(i), 354-A(2), 354A(1)(iv), 354-A(3) and 509 of the

Indian Penal Code.

4. B.A.No.2163/2022 arises out of Crime No.268/2022 of

Palarivattom Police Station, alleging commission of offences under Sections

354, 354-A(1)(i), 354-A(2), 354-A(1)(iv), 354-A(3) and 509 of the Indian Penal

Code. The allegation against the petitioner is that on 1.5.2015, when the

de facto complainant had gone to the make up studio of the petitioner for bridal

make up, the petitioner had under the guise of applying make up, put his hand

inside the blouse of the de facto complainant and touched her on her private

parts inappropriately and had thereafter sent messages to her asking her as to

whether she enjoyed the make up session and as to whether her husband was at

home etc., and thereby he committed the offences alleged against him.

5. B.A.No.2167/2022 arises out of Crime No.274/2022 of

Palarivattorm Police Station where the allegation is that the de facto

complainant, who had applied to the petitioner for the position of an

Accountant (in 2016) was appointed as such and three days after her

appointment, the de facto complainant was asked to come to the makeup

studio at Chalikkavattom, Vyttila where the petitioner required the de facto

complainant to make a cup of coffee for him and thereafter pretended to be

over-friendly with the de facto complainant. It is alleged that still later, under

the guise of showing the de facto complainant around the studio, the petitioner

started touching and groping the de facto complainant. It is alleged that the

de facto complainant somehow managed to escape from the clutches of the

petitioner and rushed home and informed the matter to her mother and to her

grandmother. It is alleged that knowing that several other women had raised

complaints against the petitioner, the de facto complainant also decided to file

a complaint against the petitioner. Accordingly Crime No.274/2022 was

registered alleging the commission of offences under Sections 354, 354-A(2)

and 354-A(1)(i) of the Indian Penal Code.

6. The learned counsel appearing for the petitioner in these cases

vehemently contends that the allegations raised against the petitioner are

completely baseless and false. It is submitted that except in Crime

No.267/2022 where the allegation relates to the date - 29.8.2021 - the

allegations in all the other cases relate to the years 2015 and 2016. It is

submitted that the complaints are malafide and raised with an intention to

drive the petitioner out of business. It is submitted that the complaints are

raised at the instance of one Priya, who was earlier associated with the

petitioner and who started a social media campaign against the petitioner. It is

submitted that the allegations surfaced immediately after an allegation of rape

was alleged against a tattoo artist, which incident got substantial attention from

the media. It is submitted that the said case prompted the aforesaid Priya to

make various persons complain against the petitioner so as to drive the

petitioner out of business. It is submitted that the wife of the petitioner is also

working with the petitioner and it is quite unbelievable that the petitioner

would have attempted to molest anyone in such circumstances. It is submitted

that the petitioner is a victim of vilification. It is submitted that the petitioner

had not sexually abused any of the de facto complainants. It is submitted that

the de facto complainant in Crime No.274/2022 had left the service of the

petitioner for reasons attributable to her and not on account of any

misbehaviour by the petitioner. It is submitted that, at any rate, considering

the nature of the allegations, the custodial interrogation of the petitioner is not

necessary.

7. The learned Public Prosecutor opposes the grant of bail to the

petitioner. It is submitted that several persons have raised allegations of sexual

abuse against the petitioner and this cannot be written off as being a campaign

to drive the petitioner out of business as is suggested by the learned counsel for

the petitioner. It is submitted that there are serious allegations raised against

the petitioner in each of the cases registered against him. It is submitted that

the delay, if any, in raising the complaint against the petitioner is no ground to

believe that the petitioner is not guilty of the offences alleged against him and

that such delay is not fatal to the prosecution case as allegations of this nature

usually surface after a substantial period of time. It is submitted that the

de facto complainants in these cases have no apparent connection with each

other. It is submitted that considering the nature of the allegations, the

custodial interrogation of the petitioner is absolutely necessary. It is submitted

that the petitioner is not entitled to anticipatory bail.

8. In B.A.No.2159/2022, a Foundation named M/s. Jenika Charity

Foundation represented by its President has filed an impleading petition

stating that it has a right to be heard in the matter. It is submitted that

M/s. Jenika Charity Foundation is a registered trust giving grass-root level

service to the survivors of domestic violence, sexually abused women, disabled

and mentally challenged persons. It is submitted with reference to Annexure-

R2(a) series of documents that some among the victims had approached the

Foundation seeking its support in taking action against the petitioner. Taking a

cue from the recent judgment of the Supreme Court in Jagjeet Singh and

others v. Ashish Mishra @ Monu and another; 2022 SCC Online SC

453 (Crl.Appeal No.632/2022) and taking note of the fact that the Foundation

is espousing the case of the victims or some among them on the basis of their

request, I am inclined to consider the submissions made by the learned counsel

appearing for M/s. Jenika Charity Foundation, though without formally

allowing their application for impleading. I overrule the serious objection

raised by the learned counsel for the petitioner that they have no right to be

heard. It is submitted by the learned counsel for the Jenika Charity Foundation

that the modus operandi of the petitioner is to sexually abuse ladies who come

for bridal make-up on the day of their marriage so that they will not reveal the

incident to any person or dare to make a complaint. It is submitted that the

delay in filing the complaint is no reason to hold that the complaints in

question are not genuine. It is submitted that if the petitioner is granted

anticipatory bail, there is every chance of material witnesses being influenced in

the matter. It is submitted that the petitioner is not entitled to anticipatory

bail.

9. In all the cases except in Crime No.274/2022, the allegations

against the petitioner are that the petitioner had made inappropriate advances

and had attempted to sexually molest the victims/de facto complainants while

applying the bridal make-up on them. In Jagjeet Singh (supra), the Supreme

Court has, apart from recognising the right of the victim to be heard,

considered and reiterated the parameters and principles which should guide

this Court in deciding whether an accused is entitled to bail. It has been

reiterated that the High Court should not grant bail without adverting to the

circumstances set out in Prasanta Kumar Sarkar v. Ashis Chatterjee

and another; (2010) 14 SCC 496, where it was held as follows:-

"9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

[See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)] (SCC p. 31, para 18), Prahlad Singh Bhati v. NCT of Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674] , and Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 : 2002 SCC (Cri) 688] .]"

It was also held that if the aforesaid circumstances are not kept in mind, the

order of the High Court would suffer from the vice of non-application of mind.

Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, is a recent

decision of a constitution bench of the Supreme Court where the principles

governing the grant or refusal of anticipatory bail have been set out. The Court

in that judgment (after referring to Gurbaksh Singh Sibbia v. State of

Punjab, (1980) 2 SCC 565) held :-

"56. The reason for enactment of Section 438 in the Code was parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty. Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being. Section 438 is a procedural provision concerned with the personal liberty of each individual, who is entitled to the

benefit of the presumption of innocence. As denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. In Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , it was observed that : (SCC p. 589, para 35)

"35. ... Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely."

It was also held in Sushila Aggarwal (supra) that :-

"92.7. An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.

92.8. The observations in Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] had observed that : (SCC p. 584, para 19)

"19. ... if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya [State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125 : (1961) 1 SCR 14 :

1960 Cri LJ 1504] ."

92.9. It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439(2) to arrest the accused, in the event of violation of any term, such as absconding, non- cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc."

Keeping the principles laid down in the aforesaid cases and considering the

nature of the allegations, I am of the opinion that the petitioner can be granted

anticipatory bail in all the cases registered against him subject to conditions.

The allegations raised against the petitioner are, no doubt, serious. In all the

cases registered against the petitioner, the commission of offences under

Section 354 IPC is alleged. In Crime No.267/2022, the commission of an

offence under Section 354B of the Indian Penal Code is also alleged. The other

offences alleged include offences under Sections 354A and 509 of the Indian

Penal Code. Thus out of the offences registered against the petitioner in the

cases, the non-bailable offences are those under Section 354 and 354B of the

Indian Penal Code. Under Section 354 of the Indian Penal Code, the

punishment provided for is imprisonment for a period not less than one year

but which may extend to five years together with a fine. Under Section 354B,

the punishment provided for is imprisonment, which shall not be less than

three years but which may extend to seven years along with fine. Thus, the

maximum penalty for offences alleged against the petitioner in these cases is

that of imprisonment for a term which shall extend to 7 years (Section 354 B

IPC). The Supreme Court in Siddharth v. State of Uttar Pradesh; (2022)

1 SCC 676 has approved the view taken by the Delhi High Court in High

Court of Delhi v. C.B.I; 2004 SCC Online Delhi 53 (reported as

Court on its own motion v. Central Bureau of Investigation). In

High Court of Delhi v. C.B.I (supra) it was held: -

"20. Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co- operation is provided by the accused to the Investigating Officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the concerned Investigating Officer or Officer-in- Charge of the Police Station thinks that presence of accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out."

Further taking into account the allegations raised against the petitioner I am of

the view that the custodial interrogation of the petitioner may not be necessary

for a proper investigation into the cases registered against the petitioner. I am,

therefore, inclined to allow these bail applications. The petitioner shall be

released on bail in the event of arrest in connection with Crime Nos.267/2022,

266/2022, 268/2022 and 274/2022 of Palarivattom Police Station subject to

the following conditions:-

(i) Petitioner shall execute separate bonds in each crime

for sums of Rs.1,00,000/- (Rupees One lakh only) each with two

solvent sureties each for the like sum to the satisfaction of the

arresting officer;

(ii) Petitioner shall co-operate with the investigation in

every manner. He shall appear before the Investigating officer in

Crime Nos.267/2022, 266/2022, 268/2022 and 274/2022 of

Palarivattom Police Station on 27.4.2022, 28.4.2022, 29.4.2022 &

30.4.2022 at 9 a.m and thereafter as and when called upon to do

so. The deemed custody of the petitioner will be with the

prosecution for the purposes of the investigation;

(iii) The petitioner shall surrender his passport before the

investigating officer in Crime Nos.267/2022, 266/2022, 268/2022

and 274/2022 of Palarivattom Police Station, on 27.4.2022. If the

petitioner does not have a passport, he shall execute an affidavit to

that effect and file the same before the before the investigating

officer in Crime Nos.267/2022, 266/2022, 268/2022 and

274/2022 of Palarivattom Police Station, on 27.4.2022, without

fail;

(iv) Petitioner shall not attempt to contact the de facto

complainants or interfere with the investigation or to influence or

intimidate any witness in Crime Nos.267/2022, 266/2022,

268/2022 and 274/2022 of Palarivattom Police Station;

(v) Petitioner shall not involve in any other crime while on

bail.

If any of the aforesaid conditions are violated, the

Investigating officer in Crime Nos.267/2022, 266/2022, 268/2022

and 274/2022 of Palarivattom Police Station may file an

application before the jurisdictional Court for cancellation of bail.