Arun Kumar M v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946 BAIL APPL. NO. 5423 OF 2024 ``` ``` CRIME NO.503/2024 OF Venmani Police Station, Alappuzha ``` ``` --------------- ``` ## **`PETITIONER/1st ACCUSED :-`** ``` ARUN KUMAR.M, AGED 38 YEARS S/O.MURALIDHARAN PILLAI, SREEVALSAM, KOLLAKADAVU.P.O., ALAPPUZHA, PIN - 690 509 ``` ``` BY ADVS. SUMAN CHAKRAVARTHY BREJITHA UNNIKRISHNAN SUDEESH K.E. ``` ## **`RESPONDENT/STATE & COMPLAINANT :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BAIL APPL. NO. 5423 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 31st day of July, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.503/2024 of the Venmani Police Station, Alappuzha, which is registered against the accused, for allegedly committing the offences punishable under Sections 294(b), 341, 323, 354C and 506 of the Indian Penal Code. It is stated that subsequently, the offence under Section 354 has been incorporated. 3. The gist of the prosecution case is that; the accused, who is a close friend of the husband of the de facto complainant/victim, made the victim to give Rs.16,50,000/- to one Aneesh and Kabeer. When the victim demanded back the money, the accused made her to believe that he would arrange a loan for the borrowers and get back her money. Thereafter, he pretended love ``` BAIL APPL. NO. 5423 OF 2024 ``` ``` -: 3 :- ``` towards the victim. He also made the victim to make nude video phone calls. When the victim made a police complaint, on 10.06.2024, at around 11:00 hrs., the accused abused the victim and her husband while they were standing on the road. The accused also pushed down the victim and her leg hit on a stone, and she suffered pain. Thus, the accused have committed the above offences. 4. Heard; Sri.Suman Chakravarthy, the learned counsel for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure 1 FIR would substantiate the falsity in the crime. The victim has deliberately filed Annexure 1 FIR to harass and vex the petitioner. The fact that the Investigating Officer had only incorporated Section 354C at the first instance, and, subsequently, incorporated Section 354 of the IPC proves ``` BAIL APPL. NO. 5423 OF 2024 ``` ``` -: 4 :- ``` the falsity in the crime. The petitioner has not outraged the modesty of the victim. 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. She submitted that the investigation is in progress. She also stated that if the petitioner is granted an order of pre-arrest bail, it may hamper the investigation. Hence, the application may be dismissed. 7. On a perusal of the materials on record, it can be seen that initially only the predicate offence under Section 354C was registered against the petitioner on the very same set of allegations, which is a bailable offence. The main accusation alleged against the petitioner is that he made the de facto complainant to make nude video telephone calls to him. Thereafter, he abused her and her husband while they were standing on the road. _Prima facie,_ it is seen that there were certain monetary transactions between the accused, the de facto ``` BAIL APPL. NO. 5423 OF 2024 ``` ``` -: 5 :- ``` complainant and third parties, which probably is the reason why the offence under Section 354 of the IPC was not incorporated at the first instance. 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 pre-arrest 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, especially on considering the fact that there were certain monetary transactions between the petitioner and the victim, and the victim allegedly paid Rs.16,50,000/- to certain borrowers as instructed by the ``` BAIL APPL. NO. 5423 OF 2024 ``` ``` -: 6 :- ``` petitioner, _prima facie_ establishes that the disputes were more civil in nature. However, that is a matter to be investigated and decided at the time of trial. Hence, I am convinced that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Consequently, I hold that the petitioner is entitled to an order of pre-arrest bail, but subject to condition that he 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. - (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; ``` BAIL APPL. NO. 5423 OF 2024 ``` ``` -: 7 :- ``` - (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 or threat to the victim or her witnesses or procure 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 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. 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. ``` BAIL APPL. NO. 5423 OF 2024 ``` ``` -: 8 :- ``` - (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 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/31.7.2024 ``` BAIL APPL. NO. 5423 OF 2024 ``` ``` -: 9 :- ``` ## **`APPENDIX OF BAIL APPL.5423/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure-1A TRUE COPY OF FIR IN CRIME NO.503/2024 OF VENMANI POLICE STATION, ALAPPUZHA ```