Arun Mathew P.S., Mary Mathew, and Eldo Mathew v. Public Prosecutor, Ernakulam and Teenu KuriaKose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 23RD DAY OF JULY 2020 / 1ST SRAVANA, 1942** ## **Bail Appl..No.3739 OF 2020** **CRIME NO.126/2020 OF SULTHAN BATHERY POLICE STATION, WAYANAD** ## **PETITIONERS/ACCUSED:** - **1 ARUN MATHEW P S/O.MATHAI.P.M., AGED 30 YEARS PANDARAMKUDIYIL HOUSE, POOMALA,POOMALA POST, SULTAN BATHERY TALUK, WAYANAD -673592** - **2 MARY MATHEW W/O.MATHAI.P.M.,AGED 59 YEARS PANDARAMKUDIYIL HOUSE, POOMALA,POOMALA POST, SULTAN BATHERY TALUK, WAYANAD -673592** - **3 ELDO MATHEW S/O.MATHAI.P.M., AGED 35 YEARS PANDARAMKUDIYIL HOUSE,NOW RESIDING AT CHEMBAYIL HOUSE DHOTTAPPANKULAM,SULTHAN BATHERY TALUK,WAYANAD 673592.** **BY ADV. SRI.NIRMAL V NAIR** ## **RESPONDENTS:** - **1 PUBLIC PROSECUTOR, ERNAKULAM, PIN 682031** - **2 TEENU KURIAKOSE AGED 24 YEARS, D/O.KURIAKOSE.N.M. RESIDING AT NAMBICHANKUDIYIL HOUSE CHOOTHUPPARA, PURACKADI VILLAGE, SULTAN BATHERY TALUK WAYANAD DISTRICT, PIN 673 591.** **R2 BY ADV. SMT.CELINE JOSEPH SRI.AJITH MURALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.3739/2020 2 ## **O R D E R** **Dated this the 23rd day of July 2020** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioners are the accused in Crime No.126 of 2020 of Sulthanbathery Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 498A and 354A read with Section 34 of the Indian Penal Code. 3. The prosecution case is that the first petitioner is the husband of the defacto complainant. The second petitioner is the mother of the first petitioner. The third petitioner is the brother of the first petitioner. According to the prosecution, the petitioners mentally and physically harassed the defacto complainant. The further allegation of the prosecution is that the third petitioner, who is the brother of the first petitioner, sexually assaulted the defacto complainant on 12.12.2019. The further case of the prosecution is that the third petitioner B.A.No.3739/2020 3 misbehaved towards the defacto complainant on earlier occasions also. 4. Heard the learned counsel for the petitioners, learned counsel for the second respondent and the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that all the allegations against the petitioners are false. The defacto complainant filed the complaint with false allegations. According to the petitioners, there was a mediation talk. The learned counsel for the petitioners submitted that when the mediation failed, the first petitioner filed Annexure-A4 petition before the Family Court for restitution of conjugal rights. Thereafter, the present complaint is filed on 20.2.2020 with the allegation of matrimonial cruelty. According to the petitioners, there is no bonafides in the allegations of the defacto complainant. 6. The learned counsel for the second respondent strongly opposed the Bail Application. The learned counsel submitted that there was mental and physical cruelty from the B.A.No.3739/2020 4 part of the petitioners. She also submitted that there was a mediation talk to settle the matter and that is why there is delay in filing the complaint. She submitted that there was sexual assault from the part of the third petitioner. The counsel who appeared for the defacto complainant submitted that she filed a private complaint before the jurisdictional court alleging offences under Sections 511 and 376 IPC against the third petitioner because the police registered the case only with a minor offence under Section 354A IPC. The counsel also submitted that the petitioners are abusing the defacto complainant with an allegation that she is suffering from some mental disorder. This itself is cruelty. Therefore, the counsel for the defacto complainant submitted that this Court may not entertain this Bail Application under Section 438 Cr.P.C. 7. The learned Public Prosecutor opposed the Bail Application. The learned Public Prosecutor submitted that this is a case in which the defacto complainant was sexually assaulted by the third petitioner who is the brother of the first petitioner. The learned Public Prosecutor submitted that this B.A.No.3739/2020 5 Court may not entertain this application under Section 438 Cr.P.C. 8. I carefully considered the documents produced by the parties and heard the contentions of all the parties. It is an admitted fact that the first petitioner married the defacto complainant. It is also an admitted fact that the matrimonial relationship continued only for three months. Thereafter, there was continuous mediation talk between the petitioners and the defacto complainant with the assistance of their relatives to settle the entire issues. It is also a fact that the first petitioner filed a petition before the Family Court for restitution of conjugal rights. A perusal of Annexure A5 and A7 will show that those are petitions filed by the defacto complainant before the police and before the Taluk Legal Service Authority. Those petitions were filed on 25.1.2020 and 27.1.2020. The present complaint was filed on 20.2.2020. I do not want to make any observations on merit. But, I have noted the fact that the allegation against the third petitioner came up for the first time in the present complaint which is submitted on 20.2.2020. It is a matter to be B.A.No.3739/2020 6 investigated by the investigating officer. The investigating officer is free to conduct investigation in this matter. But, it is a fact that this is a matrimonial offence. Even now the marital relationship exists. One case is pending before the Family Court. In such situation, if the husband and their relatives are sent to jail, it will affect the marital relationship permanently. There will not be any solution thereafter. Even though I am conscious about the allegations made by the defacto complainant in her complaint, which is of serious nature, I am forced to allow this Bail Application for the simple reason that matrimonial offences are involved in this case. Considering the entire facts and circumstances of this case, I allow this Bail Application. 9. 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 COVID-19 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 B.A.No.3739/2020 7 directions for minimizing the number of inmates inside prisons. 10. 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. 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: - (i) The petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. - (ii) After interrogation, if the Investigating Officer proposes to arrest the petitioners, they shall be released on bail on executing bond for a sum of B.A.No.3739/2020 8 Rs.50,000/- (Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned. - (iii) The petitioners shall appear before the Investigating Officer as and when required. The petitioners shall co-operate with the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence. - (iv) 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. - (v) If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- ## **P.V.KUNHIKRISHNAN JUDGE** csl