Kerala High Court
Abu Twahir vs State Of Kerala on 7 February, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946
BAIL APPL. NO. 529 OF 2025
CRIME NO.1047/2024 OF Feroke Police Station, Kozhikode
AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.2220 OF 2024 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - V, KOZHIKODE / IV
ADDITIONAL MACT, KOZHIKODE
PETITIONER/S:
1 ABU TWAHIR
AGED 21 YEARS
S/O. MUSTHAFA K.P., KIZHAKKENTE PURAKKAL HOUSE,
VALLIKKUNNU MALAPPURAM DISTRICT, PIN - 673314
2 YAKOOB N.P
AGED 21 YEARS
S/O.ISMAIL.N.P, NALUKANDI PARAMBIL ,VALIKKUNNU,
MALAPPURAM, PIN - 673314
BY ADV PRASAD CHANDRAN
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
NOUSHAD.K.A, SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
07.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.529 of 2025
-------------------------------
Dated this the 07th day of February, 2025
ORDER
This Bail Application is filed under Section 482 of
Bharatiya Nagarik Suraksha Sanhita (BNSS).
2. Petitioners is an accused in Crime
No.1047/2024 of Feroke Police Station. The above case is
registered against the petitioners alleging offences
punishable under Sections 74, 115(2)296, 351(2) r/w
Section 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023.
3. The allegation of the defacto complainant is
that, on 01.12.2024 at 04:45pm., while she was taking her
husband's photo from the place of occurrence, the accused
Nos.1 to 4 came to her and after wrongfully restraining her,
pushed her down by pushing her breast. They uttered
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obscene words with sexual remarks and further assaulted her
husband also. 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 only non-bailable offence alleged against the petitioners is
Section 74 of BNS. The counsel submitted that the petitioners
are ready to abide by any conditions, if this Court grant them
bail.
6. The Public Prosecutor opposed the bail
application. But, he submitted that, as per the report received
by him from the Investigating Officer, no criminal antecedents
are alleged against the petitioners.
7. The only non bailable offence alleged against
the petitioners is Section 74 of the BNS. This Court perused
the prosecution case. A perusal of the prosecution case would
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show that, the main intention of the petitioners is to attack
the victim. Whether the ingredients of Section 74 of BNS is
there in such circumstances is the matter to be investigated. I
do not want to make any observation about the same.
Considering the facts and circumstances of the case and also
considering the fact that the maximum punishment that can
be imposed for the offence under Section 74 of BNS is below
seven years, I think, bail can be granted to the petitioners
after imposing stringent conditions.
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.
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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. (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."
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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.
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 petitioners shall appear before the
Investigating Officer within two weeks from
today and shall undergo interrogation.
2. After interrogation, if the Investigating
Officer propose to arrest the petitioners,
they shall be released on bail on executing
a bond for a sum of Rs.50,000/-(Rupees
Fifty Thousand only) with two solvent
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sureties each for the like sum to the
satisfaction of the arresting officer
concerned.
3. The petitioners shall appear before the
Investigating Officer for interrogation as and
when required. The petitioners 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. Petitioners shall not leave India without
permission of the jurisdictional Court.
5. Petitioners shall not commit an offence
similar to the offence of which they are
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accused, or suspected, of the commission of
which they are 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 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].
7. If any of the above conditions are
violated by the petitioners, the jurisdictional
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
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liberty to approach the jurisdictional Court
to cancel the bail, if any of the above
conditions are violated.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
SSG
