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High Court of KeralaSingle JudgeBail allowed; bail granted under stringent cond...

Asharaf and others v. State of Kerala

Case / Petition Number:B.A.NO.7407 OF 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2020-11-16
Court Decision / Holding
Bail Application No.7407 of 2020 allowed. The petitioners are granted bail under Section 438 CrPC with stringent conditions as specified in the order.
Final Disposition
Bail allowed; bail granted under stringent conditions

Parties to the Case

Appellants / Petitioners

  • Asharaf
  • Muhammed Janaskhan
  • Sudheer
  • Muhammed Abu

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala Ernakulam - 682031

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. Shajin S. Hameed

Counsels for Respondents

  • • Public Prosecutor
  • • Sri Renjith T.R., PP

Case Synopsis & Summary

This is a bail application under Section 438 CrPC filed in the Kerala High Court (Ernakulam) on 16 November 2020 in Bail Application No.7407 of 2020 arising from Crime No.2502/2020 of Kallambalam Police Station, Thiruvananthapuram. The petitioners—Asharaf, Muhammed Janaskhan, Sudheer and Muhammed Abu—are accused in offences punishable under sections 447 (criminal trespass), 427 (mischief), 323 (hurt) and 354 and 354(B) read with Section 34 IPC, with the first accused stated to be the husband of the complainant. The prosecution contends trespass, assault, mischief and outraging the complainant’s modesty by disrobing. The petitioners submit that only non-bailable offences alleged are under 354 and 354(B); they contend matrimonial disputes are involved and that even on admitted facts no offence under 354/354B is made out. They are willing to abide by stringent conditions. The Public Prosecutor opposed bail. After hearing, the court notes the issue of whether 354/354B applies is for investigation and that the grant of bail remains the rule and jail the exception, supported by Supreme Court authority and COVID-19 guidelines to reduce prison populations. The court grants bail with conditions: appearance for interrogation within ten days; bond Rs.50,000 with two sureties; not leaving India without permission; no further similar offences; compliance with social-distancing guidelines; and potential cancellation on breach. The order ultimately permits bail under stringent conditions.

Provisions of Law Cited

Section 438 CrPCSection 447 IPCSection 427 IPCSection 323 IPCSection 354 IPCSection 354(B) IPCSection 34 IPC

Legal Doctrines & Maxims

  • Bail is the rule and jail is the exception.
  • Basic jurisprudence relating to bail remains the same: grant of bail is the rule and refusal is the exception.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that only non-bailable offences alleged are under sections 354 and 354(B). They argue there is matrimonial discord between the first accused and the informant, and that, even accepting the facts, no offence under 354/354B is made out. They are ready to comply with stringent conditions and request bail to enable a fair trial, especially in the COVID-19 context where jail populations must be minimized. They submit that the investigation will proceed with their cooperation and that incarceration would be unnecessary at this stage, subject to conditions.

Contentions of Respondents

The Public Prosecutor opposed bail, emphasizing the seriousness of the offences alleged (trespass, assault, mischief, and possible outraging modesty). He argued the first accused is the husband of the complainant and matrimonial disputes necessitate careful investigation. He stressed the risk of tampering with witnesses and the need to safeguard the complainant’s privacy and safety, noting the potential for continued criminal activity or flight. He urged that bail should be refused or strictly conditioned to protect the investigation and victim, while recognizing COVID-19 guidelines may permit bail with stringent safeguards.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Re: Contagion of COVID-19 Virus In PrisonsSuo Motu Writ Petition(C) No.1 of 2020Mentioned OnlyCited to justify social distancing and prison-minimization directions by higher courts.
Chidambaram P v Directorate of Enforcement2019 (16) SCALE 870PositiveCited for the principle that bail is the rule and jail is the exception, guiding the Court’s approach to bail.
W.P(C) No.9400 of 2020W.P(C)No.9400 of 2020Mentioned OnlyFull Bench directions on minimizing prison populations cited in context of COVID-19 considerations.

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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** ## **MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942** ## **Bail Appl..No.7407 OF 2020** **CRIME NO.2502/2020 OF Kallambalam Police Station , Thiruvananthapuram** ## **PETITIONER/S:** |**1**|**ASHARAF**| |---|---| ||**AGED 39 YEARS**| ||**S/O. NASAR,**| ||**SHEEJA MANZIL, MUTHANA, PALAYAMKUNNU P.O.,**| ||**CHEMMARUTHI VILLAGE, VARKALA TALUK**| ||**THIRUVANANTHAPURAM - 695146**| |**2**|**MUHAMMED JANASKHAN**| ||**AGED 28 YEARS**| ||**S/O. JALALUDEEN,**| ||**JASMI MANZIL, MUTHANA, PALAYAMKUNNU P.O.,**| ||**CHEMMARUTHI VILLAGE, VARKALA TALUK,**| ||**THIRUVANANTHAPURAM DISTRICT.**| ||**PIN-695146**| |**3**|**SUDHEER**| ||**AGED 37 YEARS**| ||**S/O. NASAR,**| ||**SHEEJA MANZIL, MUTHANA, PALAYAMKUNNU P.O.,**| ||**CHEMMARUTHI VILLAGE, VARKALA TALUK,**| ||**THIRUVANANTHAPURAM DISTRICT.**| ||**695146**| |**4**|**MUHAMMED ABU**| ||**AGED 35 YEARS**| ||**S/O. BASHEER,**| ||**KATTIL PUTHEN HOUSE, MUTHANA, PALAYAMKUNNU P.O.,**| ||**CHEMMARUTHI VILLAGE, VARKALA TALUK,**| ||**THIRUVANANTHAPURAM DISTRICT**| ||**695146**| ||**BY ADV. SRI.SHAJIN S.HAMEED**| ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM - 682031** B.A.NO.7407 OF 2020 2 ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.NO.7407 OF 2020 3 **P.V.KUNHIKRISHNAN, J. ======================= B.A.No.7407 of 2020 ====================== Dated this the 16[th] day of November, 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 the accused No. 1 to 4 in crime No.2502/2020 of Kallambalam Police Station, Thiruvananthapuram District. The above case is registered against the petitioners and others alleging offences punishable under Section 447, 427, 323, 354 and 354(B) read with Section 34 of the Indian Penal Code. 3. The prosecution case is that, the petitioners trespassed into the house of the defacto complainant and assaulted her and committed mischief. It is also alleged that, the accused outraged the modesty of the B.A.NO.7407 OF 2020 4 defacto complainant by disrobing her. The 1[st] accused in this case is the husband of the defacto complainant. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that, the only non-bailable offence alleged against the petitioners are under Section 354, 354(B). The learned counsel for the petitioners submitted that, even if the entire allegations are accepted, no offence under Section 354 or 354(B) is attracted in this case. The learned counsel for the petitioners submitted that, there is some matrimonial disputes between the 1[st] accused and the defacto complainant. In connection with the same, some incidents happened, no criminal offence is made out. The learned counsel for the petitioners submitted that, the petitioners are ready to abide any conditions, if this Court grant them bail. 6. The learned Public Prosecutor opposed B.A.NO.7407 OF 2020 5 the bail application. The learned Public Prosecutor made available the case records. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. The only non-bailable offences alleged against the petitioners are under Section 354 and 354(B) of the I.P.C. The 1[st] accused is the husband of the defacto complainant. Whether the offences under Section 354 and 354(B) of the IPC is made out in the facts and circumstances of the case, is a matter to be investigated by the Investigating Officer. I don't want to make any observation about the merit of the case. 8. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. 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 B.A.NO.7407 OF 2020 6 **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 directions for minimizing the number of inmates inside prisons. 10. 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, 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: B.A.NO.7407 OF 2020 7 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) 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 and when required. The petitioners shall cooperate 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 him from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the jurisdictional Court. 5. Petitioners shall not commit B.A.NO.7407 OF 2020 8 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 accordance to law, even though the bail is granted by this Court. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **JUDGE** NB