Jithesh .P.V vs State Of Kerala
2022 Latest Caselaw 5038 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    FRIDAY, THE 6TH DAY OF MAY 2022 / 16TH VAISAKHA, 1944
                 BAIL APPL. NO. 3143 OF 2022
AGAINST THE ORDER/JUDGMENT IN CRMC 560/2022 OF DISTRICT COURT
                 & SESSIONS COURT,KOZHIKODE
PETITIONERS:

    1     JITHESH .P.V
          AGED 34 YEARS
          JITHESH .P.V, AGED 34 YEARS, S/O. SADANANDAN,
          PAZHAYAVEETTIL PALOLITHAZHAM PARAMBA, THIRUTHIYAD,
          PUTHIYARA.P.O,KOZHIKODE.673004, PIN - 673004
    2     ADARSH.K
          AGED 28 YEARS S/O.DINESHAN, THACHORMMAL HOUSE,
          VELLIPARAMBA.P.O, KOZHIKODE.673008
    3     NISHAD, AGED 50 YEARS
          NISHAD, AGED 50 YEARS, S/O.RAJAN, ATHIKOTT HOUSE,
          ERANJIPALAM.P.O,KOZHIKODE.673006, PIN - 673006
          BY ADV SANTHARAM.P

RESPONDENT:

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

          SRI SANAL P.RAJ- P.P


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 06.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 B.A.No.3143/2022

                                    2



                     P.V.KUNHIKRISHNAN, J.
                      --------------------------------
                        B.A.No.3143 of 2022
               ----------------------------------------------
              Dated this the 06th day of May, 2022


                                ORDER

This Bail Application is filed under Section 438 of

Criminal Procedure Code.

2. Petitioners are the accused in Crime No.302/2022

of Nadakkavu Police Station. The above case is registered

against the petitioners alleging offences punishable under

Sections 323, 354 and 509 read with Section 34 of the Indian

Penal Code.

3. The prosecution case is that on 29.03.2022 at about

10.20 pm, near Baby Memorial Hospital, while the defacto

complainant, who is aged 40 years was engaged in a

conversation with her friend, the petitioners came there on a

motor cycle and uttered obscene words against the defacto

complainant and her friend and assaulted the defacto

complainant and her friend and voluntarily caused hurt to

them. Hence it is alleged that the offence is committed.

4. Heard counsel for the petitioners and the Public

Prosecutor. The counsel for the petitioners submitted that B.A.No.3143/2022

even if the entire allegations are accepted, the offence under

Section 354 of the Indian Penal Code is not made out. The

counsel also submitted that the only non bailable offence

alleged is under Section 354 of the Indian Penal Code. The

Public Prosecutor opposed the bail application and submitted

that if this Court is granting bail, stringent conditions may be

imposed. After hearing both sides, I think this bail application

can be allowed. Whether the offence under Section 354 is

made out is a matter to be decided by the trial court at the

appropriate stage. While considering the bail application, this

Court is not in a position to decide this. But, considering the

facts and circumstances of the case, custodial interrogation of

the petitioner may not be necessary. This bail application can

be allowed on stringent conditions.

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 B.A.No.3143/2022

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 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 B.A.No.3143/2022

decision and considering the facts and circumstances of this

case, this Bail Application is allowed with the following

directions:

1. The petitioners 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 petitioners, they 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 petitioners shall appear before the

Investigating Officer for interrogation as and

when required. The petitioners 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 B.A.No.3143/2022

police officer.

4. The petitioners shall not leave India without

permission of the jurisdictional Court.

5. The petitioners shall not commit an offence

similar to the offence of which they are

accused, or suspected, of the commission of

which they are suspected.

6. The petitioners 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 petitioners, 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
JV                                                   JUDGE