Kerala High Court
Moidu vs State Of Kerala on 3 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
BAIL APPL. NO. 943 OF 2025 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 3RD DAY OF FEBRUARY 2025 / 14TH MAGHA, 1946
BAIL APPL. NO. 943 OF 2025
CRIME NO.51/2025 OF Perambra Police Station, Kozhikode
PETITIONER/S:
MOIDU
AGED 72 YEARS
S/O. AMMAD, THAZHE MUCHANDI HOUSE, KOORATH,
KUTTYADI P.O, KOZHIKODE, PIN - 673508
BY ADVS.
S.RAJEEV
V.VINAY
M.S.ANEER
SARATH K.P.
DIPA V.
ANILKUMAR C.R.
K.S.KIRAN KRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 STATION HOUSE OFFICER
PERAMBRA POLICE STATION, KOZHIKODE DISTRICT (CRIME
NO. 51/2025 OF PERAMBRA POLICE STATION, KOZHIKODE
DISTRICT), PIN - 673525
SRI.HRITHWIK CS, SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 943 OF 2025 2
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P.V.KUNHIKRISHNAN, J
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B.A. No. 943 of 2025
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Dated this the 3rd day of February, 2025
ORDER
This Bail Application is filed under Section 482 of
Bharatiya Nagarik Suraksha Sanhita.
2. The petitioner is an accused in Crime No.
51/2025 of Perambra Police Station. The above case is
registered against the petitioner alleging offences punishable
under Secs. 74, 75(1)(i), 75(2) of Bharatiya Nyaya Sanhita,
2023 (for short 'BNS') and Secs.7, 8 and 9(m) and 10 of
Protection of Children from Sexual Offences (POCSO) Act,
2012.
3. The prosecution case is that, while the
petitioner was travelling in a bus, due to rush in the bus, a girl
aged 10 years sat on the lap of the petitioner. It is alleged
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that the petitioner touched the girl child at inappropriate
places. Hence, it is alleged that the accused committed the
offences.
4. Heard the learned counsel for the petitioner
and the learned Public Prosecutor.
5. The counsel for the petitioner submitted that
the petitioner is aged 72 years and when there was rush in the
bus, the petitioner allowed the child to sat on his lap and the
allegation that the petitioner touched with any bad intention,
is not correct. The counsel submitted the petitioner is ready to
abide any conditions, if this Court grants him bail. The Public
Prosecutor seriously opposed the bail application. The Public
Prosecutor takes me through the FI statement in the case. the
Public Prosecutor submitted that the allegation against the
petitioner is very serious.
6. This Court considered the contentions of the
petitioner and the Public Prosecutor. I am of the prima facie
opinion that the allegation against the petitioner is very
serious. But, the petitioner is aged 72. The maximum
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punishment that can be imposed for the offence alleged is
upto 7 years. In Arnesh Kumar v. State of Bihar and
another [(2014) 8 SCC 273], the Apex Court observed like
this :
"7.1. From a plain reading of the aforesaid provision, it
is evident that a person accused of an offence
punishable with imprisonment for a term which may be
less than seven years or which may extend to seven
years with or without fine, cannot be arrested by the
police officer only on his satisfaction that such person
had committed the offence punishable as aforesaid. A
police officer before arrest, in such cases has to be
further satisfied that such arrest is necessary to prevent
such person from committing any further offence; or for
proper investigation of the case: or to prevent the
accused from causing the evidence of the offence to
disappear; or tampering with such evidence in any
manner; or to prevent such person from making any
inducement, threat or promise to a Witness so as to
dissuade him from disclosing such facts to the court or
the police officer; or unless such accused person is
arrested, his presence in the court whenever required
cannot be ensured. These are the conclusions, which
one may reach based on facts.
7.2. The law mandates the police officer to state
the facts and record the reasons in writing which led
him to come to a conclusion covered by any of the
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provisions aforesaid. while making such arrest. The law
further requires the police officers to record the reasons
in writing for not making the arrest.
7.3. In pith and core, the police officer before
arrest must put a question to himself, why arrest? Is it
really required? What purpose it will serve? What object
it will achieve? It is only after these questions are
addressed and one or the other conditions as
enumerated above is satisfied, the power of arrest needs
to be exercised. In fine, before arrest first the police
officers should have reason to believe on the basis of
information and material that the accused has
committed the offence. Apart from this, the police
officer has to be satisfied further that the arrest is
necessary for one or the more purposes envisaged by
sub-clauses (a) to (e) of clause (1) of Section 41 CrPC."
7. Keeping in mind the above dictum, this Court
perused the FI Statement. I am of the considered opinion that
the prosecution can prove the case through oral evidence and
no custodial interrogation is necessary. Considering the facts
and circumstances of this case, I think the petitioner can be
released on bail, after imposing stringent conditions. There
can be a direction to the petitioner to appear before the
investigating officer on all Mondays at 10.00 am, till final
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report is filed.
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. 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.
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(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."
10. In Manish Sisodia v. Central Bureau of
Investigation [2023 KHC 6961], the Apex Court observed
that even if the allegation is one of grave economic offence, it
is not a rule that bail should be denied in every case.
11. Considering the dictum laid down in the above
decision and considering the facts and circumstances of this
case, this Bail Application is allowed with the following
directions:
1. The petitioner shall appear before
the Investigating Officer within two weeks
from today and shall undergo interrogation.
2. After interrogation, if the
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Investigating Officer propose to arrest the
petitioner, he 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 petitioner shall appear
before the Investigating Officer for
interrogation as and when required. The
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 him from
disclosing such facts to the Court or to any
police officer.
4. Petitioner shall not leave India
without permission of the jurisdictional
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Court.
5. Petitioner shall not commit
an offence similar to the offence of which he
is accused, or suspected, of the commission
of which he 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 petitioner even while the
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].
6. The petitioner shall appear before
the investigating officer on all Mondays at
10.00 am, till final report is filed.
7. If any of the above conditions are
violated by the petitioner, the jurisdictional
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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
JUDGE
SKS
