Abin and Sherina Baby v. State of Kerala

``` 2024:KER:59698 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 CRIME NO.442/2024 OF Thrikkakara Police Station, Ernakulam ``` ---------------- ## **`PETITIONERS`** :- - **`1 ABIN, AGED 18 YEARS S/O SHERINA BABY, BETHHARAN APARTMENT, ARIMBASSERY ROAD,VAZHAKKALA VILLAGE, ERNAKULAM, KERALA, PIN - 682 021`** ``` 2SHERINA BABY, AGED 39 YEARS BETHHARAN APARTMENT, ARIMBASSERY ROAD, VAZHAKKALA VILLAGE, ERNAKULAM, PIN - 682 201 ``` ``` BY ADVS. M.V.KISHORE KUMAR K.P.MADHU ``` ## **`RESPONDENTS :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 THE STATION HOUSE OFFICER , THRIKKAKARA POLICE STATION , ERNAKULAM, PIN - 682 031 BY SRI.C.S.HRITHWIK, SR.PP`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **==> picture [58 x 57] intentionally omitted <==** ## `2024:KER:59698` ``` BAIL APPL.NO.4598 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** **Dated this the 6th day of August, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of prearrest bail. 2. The petitioners are the accused in Crime No.442/2024 of the Thrikkakara Police Station, Ernakulam, which is registered against them, for allegedly committing the offences punishable under Sections 354, 354A, 509 and 506 r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that; on 08.04.2024, at around 20:00 hrs., when the de facto complainant and her daughter went to the house of the accused to ask for return of their money, the first accused groped the breasts of the de facto complainant and hit her on her buttocks. Subsequently, he also removed his pant and exhibited his private parts. He also shouted that he would do away with the de facto complainant. At that ``` 2024:KER:59698 ``` **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL.NO.4598 OF 2024 ``` ``` -: 3 :- ``` time, the second accused abused the de facto complainant and her daughter in obscene language. Thus, the accused have committed the above offences. 4. Heard; Sri.V.V.Suresh, the learned counsel for the petitioners and Sri.C.S.Hrithwik, 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 Investigating Officer has deliberately incorporated the offences to see that the petitioners are incarcerated. There is no material to substantiate that the petitioners have committed the above offences. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. He submitted that there are incriminating materials to substantiate the first **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:59698 ``` ``` BAIL APPL.NO.4598 OF 2024 ``` ``` -: 4 :- ``` petitioner's involvement in the crime. It was the first petitioner who outraged the modesty of the de facto complainant. The first petitioner's custodial interrogation is necessary for the proper and full investigation of the crime. However, there is no allegation made against the second petitioner other than that she abused the de facto complainant in obscene language. 7. The prosecution allegation is that; when the de facto complainant and her daughter went to the house of the accused, the first accused outraged the modesty of the de facto complainant. The allegation against the second accused is that she had used obscene words. 8. In **Jai Prakash Singh** v. **State of Bihar and another** , [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:59698 ``` ``` BAIL APPL.NO.4598 OF 2024 ``` ``` -: 5 :- ``` application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be _prima facie_ satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 9. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on comprehending the nature, seriousness and gravity of the allegations made against the first petitioner/first accused, that there are _prima facie_ materials to substantiate his involvement in the crime, that the first petitioner's custodial interrogation is necessary, I am not satisfied that the first petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the first petitioner is not entitled to an order of pre-arrest bail. On the contrary, since there is no specific overt act alleged against the second petitioner, ``` 2024:KER:59698 ``` **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL.NO.4598 OF 2024 ``` ``` -: 6 :- ``` who is a lady, I am of the view that she is entitled to an order of pre-arrest bail. In the result, - (1) The application filed by the first petitioner/ first accused is dismissed. - (2) The application filed by the second petitioner/ second accused is allowed, subject to the following conditions :- - (i) The second petitioner is directed to surrender before the Investigating Officer within 10 days from today; - (ii) In the event of the second petitioner’s arrest, the Investigating Officer shall release her on bail on her executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The second petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer; - (iv) The second petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts **==> picture [58 x 57] intentionally omitted <==** ## `2024:KER:59698` ``` BAIL APPL.NO.4598 OF 2024 ``` ``` -: 7 :- ``` of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The second petitioner shall surrender her passport before the jurisdictional court concerned within a period of one week from the date of her release on bail. If she has no passport, she shall file an affidavit to the effect before the said court within the said period; - (vi) The second petitioner shall not get involved in any other offence while she is on bail; - (vii) 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; - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below; - (ix) 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, ``` 2024:KER:59698 ``` **==> picture [58 x 57] intentionally omitted <==** ``` BAIL APPL.NO.4598 OF 2024 ``` ``` -: 8 :- ``` given by the second petitioner even while the second 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]. - (x) 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** Jvt/7.8.2024 ``` 2024:KER:59698 ``` ``` BAIL APPL.NO.4598 OF 2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` -: 9 :- ``` ## **`APPENDIX OF BAIL APPL. 4598/2024`** ``` PETITIONER ANNEXURES :- ``` ``` Annexure A1TRUE COPY OF THE FIR IN CRIME NO. 442 OF 2024 OF THRIKKAKARA POLICE STATION, ERNAKULAM DISTRICT ``` ``` Annexure A2TRUE COPY OF THE MEDICAL REPORT FROM MAJ HOSPITAL, EDAPALLY DATED 30-05-2024 ```