Subair vs State Of Kerala
2023 Latest Caselaw 10507 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                      BAIL APPL. NO. 8787 OF 2023
    CRIME NO.561/2023 OF PAZHAYANNUR POLICE STATION, THRISSUR
PETITIONER/ACCUSED :

            SUBAIR,
            AGED 49 YEARS
            ANAMANAKATH VEEDU, PULINCHODU,
            PAZHAYANNUR, THRISSUR DISTRICT,
            PIN - 680588
            BY ADVS.
            NIKITA J. MENDEZ
            P.M.RAFIQ
            M.REVIKRISHNAN
            AJEESH K.SASI
            SRUTHY N. BHAT
            RAHUL SUNIL
            SRUTHY K.K
            SRI.P.VIJAYABHANU


RESPONDENT/COMPLAINANT :

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

            SRI NOUSHAD K.A. (SR PP)



     THIS   BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BA No.8787 of 2023
                                       2



                                 ORDER

This is an application for anticipatory bail.

2. The petitioner is the accused in Crime No.561 of

2023 of Pazhayannur Police Station, Thrissur, alleging

commission of offences under Sections 376(2)(i), 354, 354A(1)(i)

and 354B of the Indian Penal Code and under Section 4(2) r/w

3(b) of the Protection of Children from Sexual Offences Act.

3. The allegation against the petitioner in brief is

that, on 17.8.2020 at about 7.00 p.m., the petitioner committed

rape on the minor victim aged 13 years at his house, and

thereby, he committed the offences alleged against him.

4. The learned senior counsel appearing for the

petitioner on the instructions of Adv.Smt.Sruthy N. Bhat would

submit that the petitioner is absolutely innocent in the matter.

It is submitted that the sister of the alleged victim is married to

the son of the petitioner. It is submitted that owing to certain

disputes between the son of the petitioner and the sister of the

alleged victim (including an issue where, the sister of the victim

is alleged to have had a relationship outside the marriage), the

relationship between the son of the petitioner and the sister of BA No.8787 of 2023

the victim has deteriorated and they are now living separately.

It is submitted that Crime No.540 of 2023 was registered at the

instance of the sister of the victim at Pazhayannur Police

Station, alleging commission of offences against the petitioner

and his son under Sections 498A and 323 of the Indian Penal

Code. The First Information Report in Crime No.540 of 2023 is

placed on record as Annexure-2. It is submitted that the present

crime has been registered (alleging that the petitioner had

committed rape on the minor victim) only to wreak vengeance.

It is submitted that a crime alleging commission of similar

offences has also been registered against the son of the

petitioner as Crime No.562 of 2023 of the very same Police

Station where, again the allegation is that the son of the

petitioner had committed rape on the minor victim who is none

other than the younger sister of his wife. The learned senior

counsel would submit that even from the First Information

Statement is clear that the statement was given after

consultation with a lawyer. It is submitted that there are strong

reasons to believe that this is a false case registered against the

petitioner only to wreak vengeance on the petitioner and his BA No.8787 of 2023

family on account of matrimonial disputes between the son of

the petitioner and the elder sister of the minor victim.

5. The learned Public Prosecutor opposes the grant

of bail. It is submitted that the petitioner is accused in atleast

ten other cases. The details of which are given as below;

(1) Crime 157/2004 u/s 143, 147, 447, 341, 323 IPC

(2) Crime 20/2005 u/s 143, 147, 148, 324, 149 IPC

(3) Crime 265/03 u/s 341, 323, 341, 149 IPC

(4) Crime 202/2004 u/s.324, 326, 34 IPC

(5) Crime 161/2008 u/s 341, 324, 308, 149 IPC

(6) Crime 282/2008 u/s.143, 147, 341, 323, 149 IPC

(7) Crime 113/2004 u/s 341, 323, 34 IPC

(8) Crime 193/2002 u/s 143, 147, 448, 341, 323, 294(b), 427

(9) Crime 233/2012 u/s 341, 323, 324, 34 IPC

(10) Crime 187/2009 u/s 341, 323, 324, 308, 34 IPC

It is submitted that all these cases are registered at the

Pazhayannur Police Station. It is submitted that the victim has

also given a statement under Section 164 of the Code of

Criminal Procedure where, she has reiterated the allegations

against the petitioner.

BA No.8787 of 2023

6. The learned senior counsel, in reply, would

submit that, even when the First Information Statement leading

to the registration of Crime No.540 of 2023 was given, there

was absolutely no allegation of any abuse of the victim (younger

sister of the petitioner's daughter-in-law). It is submitted that

this is also an indication to show that the allegations were

cooked up only to wreak vengeance. It is submitted that all the

earlier cases registered against the petitioner were on account

of the fact that the petitioner is a political activist and no

offences of similar nature has earlier been alleged against the

petitioner. It is submitted that the petitioner is a respected

figure in the society and any arrest and detention on the

allegations contained in this case will cause serious prejudice to

the petitioner and his family. The learned senior counsel also

points out that the allegations pertain to the period to year 2020

and the delay in filing the complaint is also substantial and is

indicative of the fact that the allegations raised are false.

7. Having heard the learned counsel for the

petitioner and the learned Public Prosecutor, I am of the opinion

that the petitioner can be granted anticipatory bail subject to

conditions. Considering the nature of the allegations, I would BA No.8787 of 2023

have normally been inclined to refuse anticipatory bail to the

petitioner. However, this case has its peculiarities. The elder

sister of the alleged victim is married to the son of the

petitioner. It is a case of the petitioner that the matrimonial

relationship between the son of the petitioner and his wife

(elder sister of the alleged victim) got strained on account of the

fact that the son of the petitioner had reasons to believe that the

elder sister of the victim was having a relationship outside of

the marriage. It is seen that, even when Crime No.540 of 2023

was registered at the instance of the elder sister of the alleged

victim, there were no allegations that the petitioner had

sexually abused her younger sister. Prima facie, this lends

credence to the contention taken on behalf of the petitioner that

the allegations may have been falsely raised to wreak

vengeance on the petitioner and his family on account of

matrimonial disputes between the son of the petitioner and the

elder sister of the victim. It is also to be noted that at the

instance of the same victim, a crime registered as Crime No.562

of 2023 has been registered against the son of the petitioner.

Thus, taking the totality of the circumstances into consideration, BA No.8787 of 2023

I am of the view that this is a fit case where, this Court must

grant anticipatory bail to the petitioner.

8. The Supreme Court, in Bhadresh Bipinbhai

Sheth Vs. State of Gujarat and Another; [(2016) 1 Supreme

Court Cases 152], had considered the factors that must be kept

in mind by the Court, while considering an application under

Section 438 of the Code of Criminal Procedure, when a serious

charge such as rape is alleged against the accused. Paragraph

No.25 is relevant in this regard and is extracted below;

"25. The principles which can be culled out, for the purposes of the instant case, can be stated as under:

25.1. The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.

BA No.8787 of 2023

25.2. The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.

25.3. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre- conviction stage or post-conviction stage.

25.4. There is no justification for reading into Section 438 Cr.PC the limitations mentioned in Section 437 Cr.PC. The plenitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail This virtually, reduces the salutary power conferred by Section 438 Cr.PC to BA No.8787 of 2023

a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

25.5. The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.

25.6. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can he exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time. BA No.8787 of 2023

25.7. In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.

25.8. Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 Cr.PC should also be exercised with caution and prudence It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.

25.9. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of the anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.

25.10. We shall also reproduce para 112 of the judgment in Siddharam Satlingappa case, wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made.;

BA No.8787 of 2023

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused's likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; BA No.8787 of 2023

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

9. The facts of this case as noticed above are

peculiar as noted above and therefore, keeping in mind the

principles laid down in the judgment of this Court in Bhadresh

Bipinbhai Sheth's case (supra), I am of the view that the

petitioner is to be protected by granting an order of anticipatory

bail. It is clear from the judgment of the Supreme Court in

Sushila Agarwal v. State (NCT of Delhi) and Another;

[(2020) 5 SCC 1], that even while on anticipatory bail, the

accused shall be deemed to be in custody for the purposes of

recovery etc. Therefore, the petitioner can be granted

anticipatory bail subject to conditions. The antecedents reported

against the petitioner do not relate to any similar offence and

therefore, the fact that the petitioner has criminal antecedents

does not compel me to hold that the petitioner is not entitled to

anticipatory bail in this case. I also take note of the submission

of the learned senior that the petitioner is a political activist and BA No.8787 of 2023

all those cases relate to demonstrations and other activities

connected to the political activities of the petitioner.

In the result, this application is allowed. It is directed

that the petitioner shall be released on anticipatory bail, in the

event of arrest in Crime No.561 of 2023 of Pazhayannur Police

Station, Thrissur subject to the following conditions:-

(i) Petitioner shall execute 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;

(ii) Petitioner shall appear before the investigating officer

in Crime No.561 of 2023 of Pazhayannur Police Station, Thrissur

at 11.00 a.m. on 27.10.2023 and thereafter whenever called

upon to do so;

(iii) Petitioner shall not attempt to contact the victim or

interfere with the investigation or to influence or intimidate any

witness in Crime No.561 of 2023 of Pazhayannur Police Station,

Thrissur;

(iv) Petitioner shall not involve in any other crime while

on bail.

If any of the aforesaid conditions are violated, the

Investigating officer in Crime No.561 of 2023 of Pazhayannur BA No.8787 of 2023

Police Station, Thrissur shall file an application before the

jurisdictional Court for cancellation of bail.

Any observation in this order is only for the purposes of

considering the entitlement of the petitioner for anticipatory

bail and shall not be construed in any manner as a finding by

this Court on any issue.

Sd/-

GOPINATH P., JUDGE rkj