Ashik v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` FRIDAY, THE 27[TH] DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945 BAIL APPL. NO. 8893 OF 2023 ``` ## **`CRIME NO.562/2023 OF PAZHAYANNUR POLICE STATION, THRISSUR DISTRICT`** ## **`PETITIONER/ACCUSED:`** ``` ASHIK, AGED 25 YEARS, S/O. SUBAIR, ANAMANAKATH VEEDU, PULINCHODU, PAZHAYANNUR, THRISSUR DISTRICT, PIN – 680 588. ``` ``` BY ADVS. SRUTHY N. BHAT P.VIJAYA BHANU (SR.) P.M.RAFIQ M.REVIKRISHNAN RAHUL SUNIL SRUTHY K.K NIKITA J. MENDEZ ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. ``` ``` BY ADV. SRI VIPIN NARAYAN (SR PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.8893/2023 2 ## **ORDER** This is an application for anticipatory bail. 2. Petitioner is the sole accused in Crime No.562/2023 of Pazhayannur Police Station, Thrissur district, alleging commission of offences under Sections 376(2)(i), 354, 354A(1)(i) & 354 B of the Indian Penal Code and Sections 4(2), 3(b), 6 & 5(l) of the Protection of Children from Sexual Offences Act (POCSO Act). 3. The allegation against the petitioner is that sometime in January, 2021 and on several other occasions, the petitioner had sexually abused and committed rape on the minor victim, who is none other than the younger sister of his wife and thereby he committed the offences alleged against him. 4. Learned Senior Counsel appearing for the petitioner submits that the petitioner had married the sister of the defacto complainant on 27-01-2020 and they were living together. It is submitted that sometime in the month of September 2023, the petitioner had a dispute with his wife, as he had strong reasons to believe that she was having B.A.No.8893/2023 3 an extra marital affair. It is submitted that following this issue, his wife had returned to her parents house and at her instance Crime No.540/2023 was registered at the Pazhayannur Police Station against the petitioner and his father, alleging commission of offences under Sections 498A and 323 of the Indian Penal Code. It is submitted that in the First Information Statement leading to registration of Crime No.540/2023, there was absolutely no allegation that the petitioner had abused the younger sister of his wife at a time when she was minor. It is submitted that thereafter Crime No.561/2023 was registered against the father of the petitioner alleging that he had also abused the very same victim (younger sister of the petitioner’s wife) and this Court was inclined to grant bail to the father of the petitioner through order dated 16-10-2023 in B.A.No.8787/2023. It is submitted that, the sequence of events clearly indicate that the allegations are cooked up only on account of matrimonial disputes between the petitioner and his wife. It is submitted that in such circumstances and for reasons which compelled this Court to grant bail to the petitioner’s father in B.A.No.8787/2023, the petitioner may also be granted B.A.No.8893/2023 4 anticipatory bail. 5. Heard the learned Senior Public Prosecutor also. 6. Having heard the learned Senior Counsel for the petitioner and the learned Senior Public Prosecutor, I am of the opinion that the petitioner can be granted anticipatory bail. While considering the anticipatory bail application of the petitioner’s father, I had held as follows: 7. Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the opinion that the petitioner can be granted anticipatory bail subject to conditions. Considering the nature of the allegations, I would have normally been inclined to refuse anticipatory bail to the petitioner. However, this case has its peculiarities. The elder sister of the alleged victim is married to the son of the petitioner. It is a case of the petitioner that the matrimonial relationship between the son of the petitioner and his wife (elder sister of the alleged victim) got strained on account of the fact that the son of the petitioner had reasons to believe that the elder sister of the victim was having a relationship outside of the marriage. It is seen that, even when Crime No.540 of 2023 was registered at the instance of the elder sister of the alleged victim, there were no allegations that the petitioner had sexually abused her younger sister. Prima facie, this lends credence to the contention taken on behalf of the petitioner that the allegations may have been falsely raised to wreak vengeance on the petitioner and his family on account of matrimonial disputes between the son of the petitioner and the elder sister of the victim. It is also to be noted that at the instance of the same B.A.No.8893/2023 5 victim, a crime registered as Crime No.562 of 2023 has been registered against the son of the petitioner. Thus, taking the totality of the circumstances into consideration, I am of the view that this is a fit case where, this Court must grant anticipatory bail to the petitioner. 8. The Supreme Court, in **Bhadresh Bipinbhai Sheth Vs. State of Gujarat and Another** ; [(2016) 1 Supreme Court Cases 152], had considered the factors that must be kept in mind by the Court, while considering an application under Section 438 of the Code of Criminal Procedure, when a serious charge such as rape is alleged against the accused. Paragraph No.25 is relevant in this regard and is extracted below; “ **25.** The principles which can be culled out, for the purposes of the instant case, can be stated as under: **25.1.** The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law. **25.2.** The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons B.A.No.8893/2023 6 could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. **25.3.** It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. **25.4** . There is no justification for reading into Section 438 Cr.PC the limitations mentioned in Section 437 Cr.PC. The plenitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail This virtually, reduces the salutary power conferred by Section 438 Cr.PC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance B.A.No.8893/2023 7 that if arrested, he shall be enlarged on bail. **25.5.** The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case. **25.6.** It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can he exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time. **25.7.** In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail. **25.8.** Discretion vested in the court in all matters should be exercised with care and circumspection B.A.No.8893/2023 8 depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 Cr.PC should also be exercised with caution and prudence It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. **25.9.** No inflexible guidelines or straitjacket formula can be provided for grant or refusal of the anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. **25.10.** We shall also reproduce para 112 of the judgment in Siddharam Satlingappa case, wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail: (a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made.; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (c) The possibility of the applicant to flee from justice; B.A.No.8893/2023 9 (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” B.A.No.8893/2023 10 9. The facts of this case as noticed above are peculiar as noted above and therefore, keeping in mind the principles laid down in the judgment of this Court in **Bhadresh Bipinbhai Sheth’** s case (supra), I am of the view that the petitioner is to be protected by granting an order of anticipatory bail. It is clear from the judgment of the Supreme Court in **Sushila Agarwal v. State (NCT of Delhi) and Another; [(2020) 5 SCC 1]** , that even while on anticipatory bail, the accused shall be deemed to be in custody for the purposes of recovery etc. Therefore, the petitioner can be granted anticipatory bail subject to conditions. The antecedents reported against the petitioner do not relate to any similar offence and therefore, the fact that the petitioner has criminal antecedents does not compel me to hold that the petitioner is not entitled to anticipatory bail in this case. I also take note of the submission of the learned senior that the petitioner is a political activist and all those cases relate to demonstrations and other activities connected to the political activities of the petitioner. The reasons which compelled me to grant anticipatory bail to the petitioner’s father in Crime No.561/2023 equally apply in the case of the petitioner as well. 7. In the result, this application is allowed. It is directed that the petitioner shall be released on anticipatory bail, in the event of arrest in Crime No.562/2023 of Pazhayannur Police Station, Thrissur district, subject to the following conditions:- B.A.No.8893/2023 11 (i) Petitioner shall execute 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 arresting officer; (ii) Petitioner shall appear before the investigating officer in Crime No.562/2023 of Pazhayannur Police Station, Thrissur district as and when summoned to do so; (iii) Petitioner shall not attempt to contact the victim or interfere with the investigation or to influence or intimidate any witness in Crime No.562/2023 of Pazhayannur Police Station, Thrissur district; (iv) Petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the Investigating officer/victim in Crime No.562/2023 of Pazhayannur Police Station, Thrissur district may file an application before the jurisdictional Court for cancellation of bail. **Sd/GOPINATH P. JUDGE** ats