Anvar and Sulekha Khadar v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V.KUNHIKRISHNAN
Judgment Date: 2020-10-30
Court Decision / Holding: Bail Application is allowed with stringent conditions under Section 438 CrPC.
Final Disposition: Bail granted to the petitioners with stringent conditions.

Parties to the Case

Appellants / Petitioners

Anvar
Sulekha Khadar

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Rajiv Nambisan

Counsels for Respondents

• Renjith T.R., Public Prosecutor

Case Synopsis & Summary

This Kerala High Court judgment concerns Bail Application No.6901 of 2020 under Section 438 CrPC, by accused Anvar and Sulekha Khadar in Crime No.774/2020 (originally Thrikkakara P.S. Crime No.689/2020; later transferred to Binanipuram P.S.). The offences alleged are under Section 498A read with Section 34 IPC, comprising claims of mental and physical cruelty towards the defacto complainant. Heard via video conference, the petitioners’ counsel contends that the matrimonial relationship between the first petitioner and the complainant remains intact and that the charges of cruelty are not substantiated; they are ready to abide by stringent conditions if bail is granted. The Public Prosecutor opposes unconditional bail but suggests conditions to safeguard the investigation and public health. The court reiterates the principle that bail is the rule and jail the exception and observes that basic bail jurisprudence remains the same. After considering the circumstances, the court grants bail with stringent conditions: the petitioners must appear before the Investigating Officer (IO) within ten days for interrogation; if arrest is contemplated, they must furnish bonds of Rs 50,000 with two solvent sureties; they shall not leave India without court permission; they shall not commit similar offences; they must cooperate with the investigation; and they must comply with social distancing norms. The decision also cites COVID-19 related directions from the Supreme Court and the Kerala Full Bench guidance on reducing prison populations.

Provisions of Law Cited

Section 438 of CrPCSection 498A r/w 34 IPC

Legal Doctrines & Maxims

Bail is the rule and the jail is the exception.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that the matrimonial relationship between the first petitioner and the defacto complainant remains in existence and that the allegations of matrimonial cruelty are not correct. They expressed willingness to comply with stringent conditions and to cooperate with the investigation, arguing that bail is warranted to protect fair trial and to avoid undue incarceration, especially in the context of the COVID-19 pandemic.

Contentions of Respondents

The prosecution opposed unconditional bail but indicated readiness to consider bail subject to stringent conditions. They emphasized the need to safeguard the investigation and public health, maintain peace, and prevent potential intimidation or influence on witnesses, while balancing the right to a fair trial.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)	Suo Motu Writ Petition(C) No.1 of 2020	Mentioned Only	Cited to justify COVID-19 related norms and social distancing measures affecting prison populations.
Chidambaram. P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Acknowledged as establishing the bail principle that bail is the rule and jail is the exception; forms part of the basic jurisprudence on bail.
W.P(C) No.9400 of 2020	W.P(C) No.9400 of 2020	Mentioned Only	Referenced as a Kerala High Court Full Bench directive issuing directions to minimize prison populations amid COVID-19.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 30TH DAY OF OCTOBER 2020 / 8TH KARTHIKA, 1942 Bail Appl..No.6901 OF 2020** **CRIME NO.689/2020 OF Thrikkakara Police Station , Ernakulam** ## **PETITIONERS/ACCUSED:** |**1**||**ANVAR**| |---|---|---| |||**AGED 43 YEARS**| |||**THOPPIL HOUSE, MUPPATHADAM KARA, KADUNGALLOOR**| |||**VILLAGE, PARAVUR TALUK**| |||**683110**| |**2**||**SULEKHA KHADAR**| |||**AGED 72 YEARS**| |||**THOPPIL HOUSE, MUPPATHADAM KARA, KADUNGALLOOR**| |||**VILLAGE, PARAVUR TALUK.**| |||**683110**| |||**BY ADV. SRI.RAJIV NAMBISAN**| |**RESPONDENT/S**<br>**:**||| |||**STATE OF KERALA**| |||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA**| |||**682031**| |||**R1 BY PUBLIC PROSECUTOR**| B.A.No. 6901 OF 2020 2 ## **OTHER PRESENT:** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 6901 OF 2020 3 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.6901 of 2020 ------------------------------- Dated this the 30[th] day of October, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioners are accused in Crime No.774/2020 of Binanipuram Police Station. Originally, the case was registered at Thrikkakara Police Station as Crime No. 689 of 2020 and the same is now transferred to Binanipuram Police Station. The offences alleged against the petitioners are under Section 498A r/w 34 of the IPC. 3. The prosecution case is that the petitioners mentally and physically harassed the defacto complainant. 4. Heard the counsel for the petitioners and the B.A.No. 6901 OF 2020 4 learned Public Prosecutor. 5. The counsel for the petitioners submitted that the matrimonial relationship between the first petitioner and the defacto complainant is even now in existence. The counsel submitted that the allegation against the petitioners is that there is matrimonial cruelty. The counsel submitted that the allegations against the petitioners are not correct. The counsel submitted that the petitioners are ready to abide any conditions if this Court grant them bail. 6. The Public Prosecutor opposed the bail application but the Public Prosecutor submitted that if this Court is granting bail, stringent conditions may be imposed. 7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. Admittedly, the matrimonial relationship between the first petitioner and the defacto complainant is even now in existence. The allegation against the petitioners B.A.No. 6901 OF 2020 5 is that there is matrimonial cruelty. I don't want to make any observation on the merit of the case. Considering the entire facts and circumstances and I think, this Bail Application can be allowed on stringent conditions. 8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re: Contagion of COVID19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 9. 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, B.A.No. 6901 OF 2020 6 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. 10. 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 ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs,.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as B.A.No. 6901 OF 2020 7 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 them from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 6. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic. 7. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in B.A.No. 6901 OF 2020 8 accordance to law, even though the bail is granted by this Court. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** al/-