Sahesh K.S vs State Of Kerala
2024 Latest Caselaw 33474 Ker

Kerala High Court

Sahesh K.S vs State Of Kerala on 21 November, 2024

Author: C.S.Dias

Bench: C.S.Dias

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                     THE HONOURABLE MR.JUSTICE C.S.DIAS

   THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA, 1946

                        BAIL APPL. NO. 6808 OF 2024

    CRIME NO.628/2024 OF POOCHAKKAL POLICE STATION, ALAPPUZHA

        AGAINST THE ORDER/JUDGMENT DATED 07.08.2024 IN CRMC NO.300 OF

2024 OF DISTRICT & SESSIONS COURT, ALAPPUZHA

PETITIONER:

             SAHESH K.S.,
             AGED 39 YEARS
             S/O. SAHADEVAN, PADICKAL HOUSE, PERUMBALAM P.O,
             ALAPPUZHA DISTRICT, PIN - 688526

            BY ADVS.
            M.A.SULFIA
            ABDUL JALEEL.A




RESPONDENT/S:
     1     STATE OF KERALA,
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM, PIN - 682031

    2        STATION HOUSE OFFICER,
             POOCHACKAL POLICE STATION, ALAPPUZHA, PIN - 688526



OTHER PRESENT:
           SR PP SRI C S HRITHWIK


     THIS     BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
21.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                      2024:KER:87326
BAIL APPL. NO. 6808 OF 2024

                                  2




             Dated this the 21st day of November, 2024

                           ORDER

The application is filed under Section 482 of the

Bharatiya Nagarik Suraksha Sanhita, 2023, ( for short

'BNSS') for an order of pre-arrest bail.

2. The petitioner is the sole accused in Crime

No.628/2024 of the Poochakkal Police Station,

Alappuzha, which is registered against him for allegedly

committing the offences punishable under Sections

115(2), 117(2), 126(2), 296(b), 351(2), 62, 74, 75(2),

75(3), 76 and 78(2) of the Bharatiya Nyaya Sanhita,

2023.

3. The prosecution case, in brief, is that: on

13.07.2024, at 16:00 hours, while the defacto

complainant was walking on the public road, the

accused with an intention to outrage her modesty, had

wrongfully restrained her, abused her in obscene

language, and then caught hold of her garments and 2024:KER:87326 BAIL APPL. NO. 6808 OF 2024

attempted to disrobe her. When the de facto

complainant attempted to escape from the scene of

occurrence, the clothes got torn. When the husband of

the de facto complainant attempted to intervene in the

matter, the accused abused her husband in obscene

language and beat him on his right hand and he suffered

a fracture of his middle finger. Thus, the accused has

committed the above offences.

4. Heard; Smt. Sulfia M.A. the learned counsel

appearing for the petitioner and Sri. C.S.Hrithwik, the

learned Senior Public Prosecutor.

5. The learned counsel for the petitioner

submitted that the petitioner is totally innocent of the

accusations levelled against him. There is no material

to substantiate the petitioner's culpability in the crime.

The Investigating Officer has deliberately registered the

present crime to see that the petitioner is arrested and

incarcerated. Actually, the petitioner was brutally

assaulted by husband of the de facto complainant and he 2024:KER:87326 BAIL APPL. NO. 6808 OF 2024

was taken to the District Hospital, Alappuzha, and was

referred to the Medical College Hospital, Kottayam,

where he was treated as an inpatient from 14.7.2024 to

17.7.2024. The petitioner suffered a undisplaced

fracture of his temporal bone. The petitioner is still

continuing his treatment in a Hospital in Chennai. It is

only as a counterblast to the said incident, that the de

facto complainant has got the present crime registered.

The fact that the alleged incident took place on

13.7.2024, but the FIR was registered only on 16.7.2024

at 22.47 hours, proves the falsity and frivolity in the

crime. There is no plausible explanation for the delay.

Moreover, the de facto complainant's husband went to

the Hospital only on 15.7.2024 for the treatment. This

again throws a cloud over the prosecution allegation.

The petitioner has suffered serious injuries in the said

incident. The de facto complainant's husband is involved

in another crime. He is known for his high-handed

actions. The petitioner is a vegetable vendor and does 2024:KER:87326 BAIL APPL. NO. 6808 OF 2024

not have any criminal antecedents. The petitioner's

custodial interrogation is not necessary and no recovery

is to be effected. The petitioner is ready to co-operate

with the investigation and is ready to abide by any

stringent condition that may be imposed by this Court.

Hence, the application may be allowed.

6. The learned Public Prosecutor opposed the

application. He submitted that there are incriminating

materials to substantiate the petitioner's involvement in

the crime. He handed over the Accident Register-cum-

Wound Certificate of the de facto complainant's husband

dated 24.10.2024, to substantiate that the de facto

complainant's husband was treated at the District

Hospital, Cherthala on 15.7.2024 and he suffered a

fracture of his right middle finger and his finger was

strapped. He stated that the petitioners' custodial

interrogation is necessary and recovery is to be effected

for the proper investigation of the crime. Therefore, the

application may be dismissed.

2024:KER:87326 BAIL APPL. NO. 6808 OF 2024

7. The prosecution allegation is that, the

petitioner outraged the modesty of the de facto

complainant, and thereafter, he assaulted the de facto

complainant's husband, who suffered a grievous injury.

8. On a careful scrutiny of the materials on

record, it is seen that the incident allegedly took place on

13.7.2024 at 16:00 hours. Indisputably, the FIR is

registered only on 16.7.2024 at 22.47 hours i.e., three

days after the alleged incident. The only explanation

given by the de facto complainant is that she was scared

to cross the petitioner's house to go to the Police

Station, therefore the delay occurred.

9. On an appreciation of the case diary and the

relevant materials on record, I find that the petitioner's

mother had given Annexure A3 complaint to the

Investigating Officer that the petitioner was brutally

assaulted by the de facto complainant's husband.

However, the Investigating Officer did not register the

FIR. It is after the present FIR was registered, the 2024:KER:87326 BAIL APPL. NO. 6808 OF 2024

Investigating Officer registered Annexure A3 FIR as

Crime No.629/2024 on 16.7.2024 at 23.53 hours i.e. the

next FIR after the present one.

10. Although it is alleged in Annexure A3 FIR that

the de facto complainant's husband had committed

grievous hurt on the petitioner, only Section 118(1) of

the BNS has been incorporated by the Investigating

Officer.

11. On a perusal of Annexure A2 discharge

summary of the petitioner issued by the Medical College

Hospital, Kottayam, I find that the petitioner has suffered

an undisplaced fracture of his left temporal bone and

also suffered multiple injuries in the alleged attack by

the de facto complainant's husband. Yet, the

Investigating Officer has only incorporated Section

118(1) of the BNS. Nonetheless, these are matters to be

investigated and ultimately decided after trial. The fact

remains that there is a case and counter case registered

in connection with the incident, and it is apparent that 2024:KER:87326 BAIL APPL. NO. 6808 OF 2024

the petitioner has suffered grievous injuries.

12. In Jai Prakash Singh v. State of Bihar and

another, [(2012) 4 SCC 379], the Hon'ble Supreme

Court has held that, an order of pre-arrest bail being an

extra ordinary privilege, should be granted only in

exceptional cases. The judicial discretion conferred upon

the Courts has to be properly exercised, after proper

application of mind, to decide whether it is a fit case to

grant an order of pre-arrest bail. The court has to be

prima facie satisfied that the applicant has been falsely

enroped in the crime and his liberty is being misused.

On an anxious consideration of the facts, the

rival submissions made across the Bar, and the

materials placed on record, particularly on considering

the fact that the petitioner has suffered serious injuries

in the alleged incident, and his mother had made

complaint to the Investigating Officer regarding the

attack made by the de facto complainant's husband, that

there is an inordinate delay in registering the present 2024:KER:87326 BAIL APPL. NO. 6808 OF 2024

FIR, and further the explanation put forth by the

petitioner is not appealable, I am convinced and

satisfied that the petitioner has made out valid grounds

to invoke the discretionary jurisdiction of this Court

under Section 482 of the BNSS. Hence, I am inclined to

allow the application, but subject to conditions:-

In the result, the application is allowed subject to

the following conditions:

(i) The petitioner is directed to surrender before the Investigating Officer within two weeks from today.

(ii) In the event of the arrest of the petitioner, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.1,00,000/-

(Rupees one lakh only) with two solvent sureties for the like amount each;

(iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer.

(iv) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to 2024:KER:87326 BAIL APPL. NO. 6808 OF 2024

dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file affidavits to the effect before said court within the said period;

(vi)The petitioner shall not get involved in any other offence while on bail;

(vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(viii)Applications for deletion/modification of the bail conditions shall also be filed before the jurisdictional court;

(ix) 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 petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal 2024:KER:87326 BAIL APPL. NO. 6808 OF 2024

v. State (NCT of Delhi) And another [2020 (1) KHC 663].

(x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case, which shall be decided by the competent Courts.

SD/-

C.S.DIAS,JUDGE rmm/21/11/2024