Ushakumari P.D vs State Of Kerala
2024 Latest Caselaw 28276 Ker

Kerala High Court

Ushakumari P.D vs State Of Kerala on 25 September, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                  2024:KER:71495

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
                THE HONOURABLE MR.JUSTICE C.S.DIAS
  WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946

                   BAIL APPL. NO. 7342 OF 2024

  CRIME NO.346/2024 OF CHITTAR POLICE STATION, PATHANAMTHITTA


PETITIONER:
    1     USHAKUMARI P.D
          AGED 61 YEARS
          W/O. SHAJI K.G KOTTARATHIL HOUSE , SEETHATHODU
          P.O MOONNUKALLU , , PATHANAMTHITTA, PIN - 689667

    2     AMAL K,S
          AGED 34 YEARS
          S/0 . SHAJI K.G KOTTARATHIL HOUSE , SEETHATHODU
          P.O MOONNUKALLU ,
          PATHANAMTHITTA, PIN - 689667

    3     SARIKA T.S
          AGED 34 YEARS
          W/O. ARUN.S KOTTARATHIL HOUSE , SEETHATHODU P.O
          MOONNUKALLU , PATHANAMTHITTA, PIN - 689667

    4     ARUN .S
          AGED 38 YEARS
          S/O. SHAJI K.G KOTTARATHIL HOUSE , SEETHATHODU
          P.O MOONNUKALLU ,
          PATHANAMTHITTA, PIN - 689667

    5     K.G SING
          AGED 63 YEARS
          S/O K.S GOPINATHAN. KOTTARATHIL HOUSE ,
          SEETHATHODU P.O MOONNUKALLU ,
          PATHANAMTHITTA, PIN - 689667



    6     VISHNU .S
 B.A.No.7342/2024

                                        -:2:-

                                                        2024:KER:71495

                   AGED 31 YEARS
                   S/O K.G SING . KOTTARATHIL HOUSE ,
                   SEETHATHODU P.O MOONNUKALLU ,
                   PATHANAMTHITTA, PIN - 689667

                   BY ADVS.T.K.BIJU (MANJINIKARA)
                           ANNIE M.ABRAHAM
                           KURIEN BIJU


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

       2           SUB INSPECTOR OF POLICE
                   CHITTAR POLICE STATION, [CRIME NO. 0346/2024 OF
                   CHITTAR POLICE STATION,
                   PATHANAMTHITTA, PIN - 689663


OTHER PRESENT:
                   SR PP SMT SEETHA S

      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION             ON
25.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 B.A.No.7342/2024

                                         -:3:-

                                                                  2024:KER:71495



                                   ORDER

Dated this the 25th day of September,2024

The application is filed under Section 482 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (in short,

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

2. The petitioners are the accused Nos.1 to 5 &

7 in Crime No.346/2024 of the Chittar Police Station,

Pathanamthitta, which is registered against seven

accused persons for allegedly committing the offences

punishable under Sections 85, 296(b) & 74 read with

Section 3(5) of the Bharatiya Nyaya Sanhita, 2023.

3. The crux of the prosecution case is that: the

second accused was married to the de-facto

complainant/victim on 06.02.2021. After the de-facto

complainant started residing in the matrimonial home,

the accused, in furtherance of their common intention,

mentally and physically tortured the de-facto

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complainant. On 25.04.2024, the accused had abused

the de-facto complainant in obscene language, pushed

her to the bed, and outraged her modesty. Thus, the

accused have committed the above offences.

4. Heard; Sri. T.K.Biju (Manjinikara), the

learned counsel appearing for the petitioners and

Smt. Seetha S., the learned Senior Public Prosecutor.

5. The learned counsel for the petitioners

submitted that the petitioners are totally innocent of

the accusations levelled against them. The first

petitioner is the mother of the second petitioner, who is

the husband of the de-facto complainant. The

petitioners 3 to 6 are the sister, brother, and uncle and

his son of the second petitioner, who are all residing in

the same house. They have all been implicated in the

crime for the sole purpose of harassing and vexing

them. There is no material to substantiate their

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culpability in the crime. The matrimonial relationship

between the second petitioner and the de-facto

complainant is totally strained. It is only as an arm

twisting tactic that the present crime has been

registered. The petitioners are law-abiding citizens

without any criminal antecedents. The petitioners 1 &

5 are both senior citizens, and the petitioners 1 & 3 are

women. The petitioners' custodial interrogation is not

necessary. Hence, the application may be allowed.

6. The learned Public Prosecutor opposed the

application. She submitted that the investigation is in

progress. She also stated that if the petitioners are

granted an order of pre-arrest bail, it may hamper the

investigation. Hence, the application may be dismissed.

7. The prosecution case is that the accused, in

furtherance of their common intention, had mentally

and physically harassed the de-facto complainant and

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the accused Nos.4 to 7 outraged her modesty and also

abused her in obscene language.

8. On an evaluation of the materials on record,

it can be seen that the marital relationship between the

second petitioner and the de-facto complainant is

strained. Even though the alleged incident started as

early as on 06.02.2021, Annexure-A1 First Information

Report [FIR] is registered on 26.08.2024. There is no

plausible explanation for the delay.

9. The Hon'ble Supreme Court in Bhadres

Bipinbhai Sheth vs State of Gujarat and Another

[2015 KHC 4579] has succinctly culled out the

principles to grant orders of pre-arrest bail. It is

apposite to extract the relevant portions of the

judgment, which reads thus:

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

xxx xxx xxxx

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(ii) 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.

(iii) 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.

(iv) There is no justification for reading into S.438 CrPC the limitations mentioned in S.437 CrPC. The plentitude of S.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 S.438 CrPC to 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."

10. Recently, in Manish Sisodia v.

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Directorate of Enforcement [2024 INSC 595] the

Honourable Supreme Court has observed that, over a

period of time, the trial courts and the High Courts

have forgotten a very well-settled principle of law that

bail is not to be withheld as a punishment. From its

experience, it appears that the trial courts and the

High Courts attempt to play safe in matters of grant of

bail. The principle that bail is the rule and refusal is an

exception is, at times, followed in breach. On account

of non-grant of bail even in straight forward open and

shut cases, the Honourable Supreme Court is flooded

with huge number of bail petitions thereby adding to

the huge pendency. It is high time that the trial courts

and the High Courts recognize the principle that "bail

is the rule and jail is an exception.

11. Similarly, in Jalaluddin Khan v Union

of India [2024 INSC 604] the Hon'ble Supreme Court

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has observed in the following lines:

"21. xxx xxxx xxx When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our

Constitution."

12. On an overall consideration of the facts, the

rival submissions made across the Bar, and the

materials placed on record, particularly on considering

the fact that the marital relationship between the

second petitioner and the de-facto complainant is

strained, that although the harassment started from

06.02.2021, Annexure-A1 FIR is registered only on

26.08.2024, I am of the firm view that the petitioners'

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custodial interrogation is not necessary. I am

convinced and satisfied that the petitioners have made

out satisfactory 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 petitioners are directed to surrender before the Investigating Officer within 10 days from today.

(ii) In the event of the petitioners' arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.1,00,000/- (Rupees one lakh only) each with two solvent sureties for the like amount each;

(iii) The petitioners shall appear before the Investigating Officer as and when required;

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(iv) The petitioners shall not directly or indirectly make any inducement, threat or procure to the victim or any person acquainted with the facts of the case so as to 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 petitioners shall not get involved in any other offence while on bail;

(vi) 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.

(vii)Applications for deletion/modification of the bail conditions shall also be filed before the court below.

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(viii) 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 petitioners even while the petitioners are 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].

(ix) 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 to be decided by competent Courts.

Sd/-

                                            C.S.DIAS,JUDGE
DST/25.09.24                                                         //True copy//

                                                                     P.A. To Judge