Kerala High Court

Mubash vs State Of Kerala on 14 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                            2025:KER:12608
          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

FRIDAY, THE 14TH DAY OF FEBRUARY 2025 / 25TH MAGHA, 1946

                 BAIL APPL. NO. 393 OF 2025

CRIME NO.1215/2024 OF PARIPPALLY POLICE STATION, KOLLAM

PETITIONER/ACCUSED:

          MUBASH
          AGED 49 YEARS, HAJARA MANZIL, ANCHAL. P.O,
          THAZHAMEL, ANCHAL VILLAGE, PUNALUR TALUK,
          KOLLAM.
          NOW RESIDING AT ANUGRAHA, VETTIYARA.P.O,
          NAVAIKULAM VILLAGE, VARKALA TALUK., PIN - 695
          141.

          BY ADVS.
          R.SUNIL KUMAR
          A.SALINI LAL
          J.M.DEEPAK
          JINU P. BINU



RESPONDENTS/STATE:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031.

   *2     ADDL.R2 JAMEELA S
          D/O. ABDUL VAHID ANUGRAHA, KADAMABATTUKONAM
          NAVAYIKULAM, THIRUVANANTHAPURAM

          [ADDLR2. IMPLEADED AS PER ORDER DATED
          14.02.2025 IN CRL.M.A NO.1 OF 2025 IN B.A
          NO.393 OF 2025]
                                           2025:KER:12608
B.A No.393 of 2025
                                  2
           BY ADVS.
           AMRITH M.J.
           SNEHA SURESH
           HRITHWIK C.S, SR. PP


      THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 14.02.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                                 2025:KER:12608
B.A No.393 of 2025
                                  3


                  P.V.KUNHIKRISHNAN, J
               --------------------------------
                  B.A.No.393 of 2025
                -------------------------------
       Dated this the 14th day of February, 2025


                            ORDER

This Bail Application is filed under Section 482 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the sole accused in Crime

No.1215 of 2024 of Parippally Police Station, Kollam. The

above case is registered against the petitioner alleging

offences punishable under Sections 75(1)(i), 75(1)(ii), 74,

296(b), 127(2), 351(2), and 115(2) of the Bharatiya

Nyaya Sanhita, 2023 (for short 'BNS').

3. The prosecution case is that on

09.09.2024, the accused visited the flat in Katadi Mukku,

where the defacto complainant and her family were

staying, and found her alone. It is alleged that with

intended to inflict harm and subject her to sexual 2025:KER:12608

harassment, the accused made coercive sexual

advances, promising material benefits in exchange for

her co-operation. When the complainant resisted, the

accused verbally abused her, locked her in the room,

physically assaulted her by grabbing her breasts,

slapping her on the cheek, and kicking her to the floor,

causing her severe mental anguish and humiliation.

Hence it is alleged that the accused committed the

offence.

4. Heard counsel for the petitioner, the

Public Prosecutor and the counsel appearing for the

defacto complainant.

5. Counsel appearing for the petitioner

submitted that several cases are pending between the

petitioner, the defacto complainant and her husband. The

petitioner produced several documents to support the

same. According to the petitioner, it is a false case foisted

against the petitioner.

2025:KER:12608

6. The counsel appearing for the defacto

complainant very seriously opposed the bail application.

The counsel submitted that this is a clear case in which

the offences alleged are attracted. The petitioner is even

now threatening the defacto complainant and not in a

position to stay in her house, because of this incident. It

is submitted that the defacto complainant separated from

her husband and now staying with her mother.

7. Public Prosecutor also opposed the bail

application.

8. This Court considered the contentions of

the petitioner, the defacto complainant and the Public

Prosecutor. The only non-bailable offence alleged in this

case are under Sections 75(1)(i), 75(1)(ii) and 74. The

maximum punishment that can be imposed for these

offences are below 7 years. In Arnesh Kumar v. State

of Bihar and Another [(2014) 8 SCC 273] the Hon'ble

Apex Court observed like this:

2025:KER:12608

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 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 himself, 2025:KER:12608

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 Cr.P.C.

Keeping in mind the observation of the

Hon'ble Apex Court, this Court perused the allegation

against the petitioner. Prosecution can prove the case

through oral evidence and no custodial interrogation is

necessary.

9. But, the counsel appearing for the

defacto complainant submitted that there is threat from

the petitioner and if he is released on anticipatory bail, he

will repeat the same. It is submitted that the defacto

complainant now staying within the Jurisdictional Limit of 2025:KER:12608

Pallikal Police Station. Considering the facts and

circumstances of the case, I think there can be a direction

to the petitioner not to enter the Jurisdictional limit of

Pallikkal Police Station for a period of one month. With

that condition, the bail application can be allowed.

10. 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.

11. 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.

2025:KER:12608

"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 2025:KER:12608

with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused."

12. 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 petitioner 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 2025:KER:12608

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 her from

disclosing such facts to the Court or to

any police officer.

4. Petitioner shall not leave India

without permission of the jurisdictional 2025:KER:12608

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. Petitioner shall not enter the

Jurisdictional Limit of Pallikal Police

Station for a period of one month.

7. 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].

2025:KER:12608

8. If any of the above conditions are

violated by the petitioner, 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 liberty

to approach the jurisdictional Court to

cancel the bail, if any of the above

conditions are violated.