Kerala High Court
Sudhimon Jaffer vs State Of Kerala on 21 May, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
BAIL APPL. NO. 3877 OF 2024
CRIME NO.379/2024 OF Thrikkakara Police Station, Ernakulam
PETITIONERS/ACCUSED 2 & 3:
1 SUDHIMON JAFFER
AGED 36 YEARS
S/O. JAFFER, KARIKIMATTOM HOUSE,
KATTAPPANA,P.O., AMBALAKAVALAM IDUKKI DISTRICT
NOW RESIDING AT PERKADAVU HOUSE, KUMBALAM,
ERNAKULAM, PIN - 688532
2 SHANTHI MOL C.P
AGED 35 YEARS
W/O SUDHIMON, KARIKIMATTOM HOUSE,
KATTAPPANA,P.O., AMBALAKAVALAM IDUKKI DISTRICT
NOW RESIDING AT PERKADAVU HOUSE, KUMBALAM,
ERNAKULAM., PIN - 688532
BY ADVS.
SALIM V.S.
A.M.FOUSI
A.B.AJIN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
SRI.RIYAL DEVASSY, PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 21.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.3877/2024
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A.No.3877 of 2024
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Dated this the 21st day of May, 2024
ORDER
This Bail Application is filed under Section 438 of
Criminal Procedure Code.
2. Petitioners are the accused in Crime No.379/2024
of Thrikkakara Police Station. The above case is registered
alleging offences punishable under Sections 376(2)(n) of the
Indian Penal Code and Section 66E of the Information
Technology Act, 2000.
3. The prosecution case is that the 1 st accused enticed
the defacto complainant with a promise to marry her and took
her to Swarna Residency at Vazhakkala on 30.08.2023 and on
28.02.2024. It is the prosecution case that the 1 st accused
committed sexual intercourse with defacto complaint on those
occasions with the aforesaid promise to marry her and also
recorded photos of the defacto complainant. Subsequently, the
1st accused refused to marry her. Hence, it is alleged that the
accused committed the offence.
4. Heard counsel for the petitioners and the Public
Prosecutor.
5. The counsel for the petitioners submitted that the
main allegation is against the 1st accused and no overt act is
attributed to the petitioners even as per the FI Statement.
The counsel submitted that the petitioners are ready to abide
any conditions if this Court grant them bail.
6. The Public Prosecutor submitted that the 1st
petitioner is not arrayed as an accused. The Public Prosecutor
seriously opposed the bail application of the 2nd petitioner
stating that custodial interrogation of the 2 nd petitioner is
necessary. According to the Public Prosecutor, the mobile
phone of the 2nd petitioner is to be perused because there is an
allegation that photos of the victim is there in the mobile
phone.
7. This Court considered the contentions of the
petitioners and the Public Prosecutor. Admittedly the main
allegation is against the 1st accused and he is already released
on bail under Section 439 Cr.P.C. There is no serious
allegation against the 2nd petitioner. The main contention of
the Public Prosecutor is that the mobile phone is to be seized
from the 2nd petitioner. If that be the case, the 2 nd petitioner
can be directed to surrender before the Investigating Officer
and thereafter the 2nd petitioner can be released on bail.
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, the Bail Application in respect of the 2nd petitioner is
allowed with the following directions:
1. The 2nd petitioner shall appear before the
Investigating Officer within ten days from today
and shall undergo interrogation.
2. After interrogation, if the Investigating Officer
proposes to arrest the 2nd petitioner, she 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 2nd petitioner shall appear before the
Investigating Officer for interrogation as and
when required. The 2nd 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 her from
disclosing such facts to the Court or to any
police officer.
4. The 2nd petitioner shall not leave India without
permission of the jurisdictional Court.
5. The 2nd petitioner shall not commit an offence
similar to the offence of which she is accused,
or suspected, of the commission of which she is
suspected.
6. Needless to mention, it would be well within the
powers of the Investigating Officer to
investigate the matter and, if necessary, to
effect recoveries on the information, if any
given by the 2nd petitioner even while the 2nd
petitioner is on bail as laid down by the Hon'ble
Supreme Court in Sushila Aggarwal v.State
(NCT of Delhi) and another (2020 (1) KHC
663).
7. If any of the above conditions are violated by
the 2nd petitioner, the jurisdictional Court can
cancel the bail in accordance to law, even
though the bail is granted by this Court.
8. The submission of the Public Prosecutor that
the 1st petitioner is not an accused, is recorded.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
APPENDIX OF BAIL APPL. 3877/2024
PETITIONER ANNEXURES
Annexure 1 THE TRUE COPY OF THE FIR DATED
17.03.2024 OF THRIKKAKARA POLICE
STATION, ERNAKULAM.
Annexure 2 THE TRUE COPY OF THE FIS DATED
17.03.2024 IN CRIME NO 379/2024 OF
THRIKKAKARA POLICE STATION.
