Kerala High Court

Asharaf K.P vs State Of Kerala on 22 January, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

B.A.No.394 of 2025
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                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
    WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946
                           BAIL APPL. NO. 394 OF 2025
    CRIME NO.110/2024 OF KOYILANDY POLICE STATION, KOZHIKODE
PETITIONER(S)/ACCUSED:

                ASHARAF K.P.
                AGED 72 YEARS
                S/O.KUNHAMU HAJI, BENZAN HOUSE, KETTUMMAL,
                PURAKKAD, PAYYOLI, KOZHIKKODE DISTRICT,
                PIN - 673522

                BY ADV BABU S. NAIR


RESPONDENT(S)/STATE & COMPLAINANT:

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

       2        THE STATION HOUSE OFFICER
                KOYILANDI POLICE STATION KOZHIKKODE DISTRICT,
                PIN - 673305

                BY ADV.
                SRI.G.SUDHEER, PP



        THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.01.2025,          THE   COURT   ON   THE   SAME   DAY   DELIVERED     THE
FOLLOWING:
 B.A.No.394 of 2025
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                            P.V.KUNHIKRISHNAN, J
                          --------------------------------
                                B.A.No.394 of 2025
                           -------------------------------
                     Dated this the 22nd day of January, 2025


                                     ORDER

This Bail Application is filed under Section 482 of Bharatiya

Nagarik Suraksha Sanhita.

2. Petitioner is an accused in Crime No.110/2024 of

Koyilandy Police Station. The above case is registered against the

petitioner alleging offences punishable under Section 354-A(2) of

the IPC and Sections 7 and 8 of the Protection of Children from

Sexual Offences Act (for short 'POCSO Act').

3. The prosecution case is that the defacto

complainant, a 14 year old girl, who is the classmate of the grand

daughter of the petitioner, came to the house of the petitioner on

18.01.2024 and the allegation is that the petitioner touched the

chest and buttocks of the defacto complainant. Hence it is alleged

that the accused committed the above said offences.

4. Heard the learned counsel appearing for the

petitioner and the learned Public Prosecutor.

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5. Counsel for the petitioner submitted that the

alleged incident happened on 18.01.2024 and the complaint was

filed only on 30.01.2024. The counsel submitted that the

petitioner is aged 72 years and the allegation against the petitioner

is improbable. The counsel also submitted that the petitioner is

ready to abide any conditions if this Court grants him bail.

6. The Public Prosecutor opposed the bail

application. The Public Prosecutor submitted that serious

allegations are there against the petitioner.

7. This Court considered the contentions of the

petitioner and the Public Prosecutor. It is true that the allegation

against the petitioner is serious. But the prosecution can prove the

case through oral evidence. The custodial interrogation of the

petitioner is not necessary. Moreover, the maximum punishment

that can be imposed for the offences alleged is below seven years.

This point is considered by the Apex Court in Arnesh Kumar v.

State of Bihar and Another [2014 (8) SCC 273]. It will be better

to extract the relevant portion of the above judgment:

"7. xxxxxxxxx 7.1. From a plain reading of the aforesaid

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provision, it is evident that all 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 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 to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after

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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."

Keeping in mind the above dictum, I think the petitioner can be

released on bail 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.

9. Recently the Apex Court in Siddharth v. State of

Uttar Pradesh and Another [2021(5)KHC 353] considered the

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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."

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.

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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

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

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of the case so as to dissuade him from disclosing

such facts to the Court or to any police officer.