Ashraf M v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942** ## **Bail Appl..No.6269 OF 2020** **CRIME NO.108/2020 OF KILIKOLLOOR POLICE STATION , KOLLAM** ## **PETITIONER/S:** **ASHRAF M AGED 41 YEARS SON OF MYTHEEN KUNJ, RESIDING AT ASHARAF MANZIL, VADAKKEVILA, AYATHIL P.O., PATTATHANAM, KOLLAM - 691021 BY ADVS. SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SHRI.SAMEER M NAIR** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682031 2 STATION HOUSE OFFICER AGED 30 YEARS KILIKOLLOR POLICE STATION, KOLLAM - 691004 3 REJIYA AGED 32 YEARS DAUGHTER OF O HAWA UMMA; RESIDING AT: P.K.HOUSE, SADATH NAGAR 24, NEAR, KALLUMTHAZHAM P.O., KILIKOLLOR,** B.A.No.6269 OF 2020 2 **MALIKARA PALLI, KALLUM, KOLLAM - 691004** **R1 BY PUBLIC PROSECUTOR** **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.6269 OF 2020 3 ## **P.V.KUNHIKRISHNAN, J. ===================== B.A.No.6269 of 2020 ===================== Dated this the 9[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 petitioner is the accused in Crime No. 108 of 2020 of Kilikolloor Police Station, Kollam District. The above case is registered against the petitioner alleging offences punishable under Sections 323, 324, 326 & 498 A of the Indian Penal Code. 3. The prosecution case is that the petitioner is mentally and physically harassed the de facto complainant. It is alleged that on 24/03/2009 the petitioner attacked the de facto complainant. It is alleged that a steel cup was thrown towards the de facto complainant by which she B.A.No.6269 OF 2020 4 sustained serious injuries. The present complaint is filed on 01/02/2020 alleging that the petitioner is not looking after the de facto complainant and he is living with another woman. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned Counsel for the petitioner submitted that, the matrimonial relationship between the petitioner and the de facto complainant is even now in existence. The learned Counsel submitted that, the alleged incident is happened in 2009. Now the complaint is filed in 2020. The learned counsel for the petitioner submitted that, no such incident was happened as alleged by the de facto complainant. The learned Counsel for the petitioner also submitted that, the de facto complainant is making use of some injuries sustained to her eye in 2009 and filed a false complaint now. The learned counsel also submitted that, the petitioner is ready to abide any conditions, if this Court grant him bail. B.A.No.6269 OF 2020 5 6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor submitted that, the offence under Section 326 of the I.P.C is also alleged in this case. Custodial interrogation of the petitioner is necessary. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. Admittedly, the matrimonial relationship between the petitioner and the de facto complainant is even now in existence. I do not want to make any observations about the merit of the case. The alleged incident by which the de facto complainant sustained injury was in 2009. Again I don't want to make any observations about that incident. These are matters to be investigated by the Investigating Officer. But the fact remains that the matrimonial relationship between the petitioner and the de facto complainant is even now in existence. Considering the entire facts and circumstances of this case, I think this bail can be allowed on stringent conditions. B.A.No.6269 OF 2020 6 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 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. 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, 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 B.A.No.6269 OF 2020 7 this case, this Bail Application is allowed with the following directions: _1. The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation;_ _2. After interrogation, if the Investigating Officer proposes to arrest the petitioner, he 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 petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner 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 him from disclosing such facts to the Court or to any police officer;_ B.A.No.6269 OF 2020 8 _4. The petitioner shall not leave India without permission of the Court;_ _5. The petitioner 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 petitioner 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._ If any of the above conditions are violated by the petitioner, 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** LU