Boby @ Aji vs State Of Kerala
2022 Latest Caselaw 4925 Ker

                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. 2347 OF 2022
petitioner:

            BOBY @ AJI
            AGED 45 YEARS
            S/O LAZER FERNANDEXZ,
            VADAKKEKOLADI CHERI THOPPIL,
            SAKTHIKULANGARA P.O.
            KOLLAM ., PIN - 691003

            BY ADVS.
            M.JAYAKRISHNAN
            SHAJI MATHEW N.M.



RESPONDENT/S:

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

    2       STATION HOUSE OFFICER
            SAKTHIKULANGARA POLICE STATION, RAMANKULANGARA,
            SAKTHIKULANGARA P.O., KOLLAM., PIN - 691003




            ADV SREEJA V- SR P.P




     THIS     BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 2347 OF 2022
                                             2

                              P.V.KUNHIKRISHNAN, J
                           --------------------------------
                               B.A.No.2347 of 2022
                           -------------------------------
                        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.147/2022 of

Sakthikulangara Police Station. The above case is registered against

the petitioner alleging offence punishable under Section 451, 354

and 354(A) of the IPC.

3. The prosecution case is that the petitioner trespassed into

the house of the defacto complainant, while the defacto

complainant was conducting tuition for students. It is alleged that

the petitioner misbehaved to the defacto complainant. It is also

alleged that the petitioner attempted to pull the defacto

complainant close to his body and had expressed his wish to kiss

her.

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

The Counsel for the petitioner submitted that even if the entire BAIL APPL. NO. 2347 OF 2022

allegations are accepted, the offence under Section 354 of the IPC

is not made out. The counsel submitted that Section 354(A) is a

bailable offence. The Counsel for the petitioner submitted that there

is a civil dispute between the petitioner's family and the family of

the defacto complainant. That is why the false case is foisted

against the petitioner. The Public Prosecutor submitted that the

petitioner attempted to outrage the modesty of the defacto

complainant in front of her students. The Public Prosecutor

submitted that in such situation, this Court may not grant

anticipatory bail to the petitioner. It is true that the allegation

against the petitioner are very serious. But the petitioner says that

there is a boundary dispute between the family of the petitioner

and the defacto complainant. This Court is not in a position to

accept the same at this stage. But, after going through the facts

and circumstances of the case, it is clear that custodial

interrogation of the petitioner may not be necessary. It is a case to

be proved before the appropriate Court at the appropriate stage by

adducing oral evidence. In the light of the same, the petitioner can

be released on bail on stringent conditions. Since the petitioner BAIL APPL. NO. 2347 OF 2022

is a neighbour of the defacto complainant, the petitioner shall not

enter the jurisdictional limit of the Police Station for a period of 60

days or till final report is filed in the above case.

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

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.

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.

. "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 BAIL APPL. NO. 2347 OF 2022

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.

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 BAIL APPL. NO. 2347 OF 2022

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.

5. 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   not   enter   the

         jurisdictional    limit   of   Sakthikulangara    Police

Station, Kollam, for a period of 60 days or till final

report is filed, whichever is earlier.

7. If any of the above conditions are violated BAIL APPL. NO. 2347 OF 2022

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 Nsd BAIL APPL. NO. 2347 OF 2022

APPENDIX OF BAIL APPL. 2347/2022

PETITIONER ANNEXURES

Annexure A1 CERTIFIED COPY OF THE FIR IN CRIME NO.

147/2022 OF SAKTHIKULANGARA POLICE STATION KOLLAM DISTRICT ALONG WITH THE FIS DATED 23.02.2022

Annexure A2 FREE COPY OF THE ORDER DATED 11.03.20222 IN CRL.M.C. NO. 423/2022 ON THE FILES OF THE ADDITIONAL SESSIONS COURT IV, KOLLAM.