Ali v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL. NO. 5496 OF 2024 ``` ``` CRIME NO.508/2024 OF CHEVAYUR POLICE STATION, KOZHIKODE PETITIONER/ACCUSED: ``` ``` ALI, AGED 62 YEARS PARAKKULATHIL - HOUSE, POST-MARRIKKUNNU, CHEVAYOOR, KOZHIKODE, PIN - 673012 BY ADV K.RAKESH ROSHAN ``` ## **`RESPONDENTS:`** ``` STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, CHEVAYOOR POLICE STATION, KOZHIKODE REPRESENTED BY PUBLIPROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.5496 of 2024 _-:2:-_ Dated this the 26[th] day of July, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.508/2024 of the Chevayur Police Station, Kozhikode which is registered against him for allegedly committing the offences punishable under Section 354 of the Indian Penal Code, 1860 (IPC) and Section 10 r/w Section 9 (m) of the of the Protection of Children from Sexual Offences Act. 3. The gist of the prosecution case is that: on 19.06.2024, at around 18.00 hours, when the victim, a 11 old child, was playing in the courtyard of her rented house, which belongs to the accused, the accused B.A.No.5496 of 2024 _-:3:-_ pressed her genitals and grabbed her breasts and subjected the victim to sexual assault and outraged her modesty. Thus, the accused has committed the above offences. 4. Heard; Sri. Rakesh Roshan K., the learned counsel appearing for the petitioner and Smt. Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. The present crime has been registered at the instance of the father of the victim, who is petitioner’s tenant. The petitioner had leased his house to the father of the victim on 20.05.2023 for a period of 11 months. On the expiry of the lease, he went to the tenanted premises and requested the victim’s father to vacate. But, he refused to adhere to the same. It is a counterblast to B.A.No.5496 of 2024 _-:4:-_ the said request, that the tenant has made his daughter to lodge the present baseless complaint. The petitioner is 62 years of age and is a law abiding citizen. The petitioner does not have any criminal antecedents. The petitioner is residing peacefully with his family. The sole intention of the father of the victim is to continue to reside in the petitioner’s property without paying any rent. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the victim has given a 164 statement stating that she was molested by the petitioner and her modesty was outraged. The petitioner’s custodial interrogation is necessary for the proper and full investigation of the B.A.No.5496 of 2024 _-:5:-_ crime. Therefore, the application may be dismissed. 7. On an evaluation of the materials on record, it can be gathered that the father of the victim had taken the petitioner’s house on rent. The tenure of the lease was for a period of 11 months from 20.5.2023. The petitioner contends that he had gone to the tenanted premises to request the father of the victim to vacate from the premises as the tenancy had lapsed. However, the father of the victim refused to vacate from the premises. It is a counterblast to the request made by the petitioner, that the father of the victim had made his daughter to lodge the complaint against the petitioner. On a prima facie appreciation of the materials on record, I find that there is some sanctity in the defence of the petitioner. Nonetheless, these are all matters to be investigated and ultimately decided at the time of trial. However, I find that the petitioner's B.A.No.5496 of 2024 _-:6:-_ custodial interrogation is not necessary for the proper investigation of the crime. 8. In **Bhadres Bipinbhai Sheth v. State of Gujarat and another** [2015 KHC 4579] the Hon'ble Supreme Court has succinctly culled out the principles to grant orders of pre-arrest bail. It is laid down that Courts should be careful and meticulous in evaluating the facts of each case before granting an order of prearrest bail. The court should consider whether arresting of an accused would lead to ignominy, humiliation and disgrace to the accused and their family and also if there is any frivolity in the complaint registered against the accused. 9. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the father of the victim is a tenant of the B.A.No.5496 of 2024 _-:7:-_ petitioner, that there are certain disputes with regard to eviction of the victim’s father from the building of the petitioner, and that it is after the expiry of the tenancy that the present complaint has been raised, I find some frivolity in the litigation. However, without expressing anything on the merits of the matter, I am of the view that the petitioner’s custodial interrogation is not necessary. Hence, I hold that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Consequently, I am inclined to allow the application; subject to the condition that the petitioner co-operates with the Investigating Officer. In the result, the application is allowed subject to the following conditions: (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. ## B.A.No.5496 of 2024 _-:8:-_ (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like amount each; (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. (iv) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever; (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. B.A.No.5496 of 2024 _-:9:-_ If he has no passport, he shall file an affidavit to the effect before the said court within the said period; (vi)The petitioner shall not get involved in any other offence while 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, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble B.A.No.5496 of 2024 _-:10:-_ 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** rmm/26/7/2024