BA Nos. 3115 & 3117 of 2022, In the High Court of Kerala at Ernakulam

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 6[TH] DAY OF MAY 2022 / 16TH VAISAKHA, 1944 ``` ``` BAIL APPL. NO. 3115 OF 2022 ``` ## **`PETITIONER/S:`** ``` DINO ANTONY AGED 35 YEARS SON OF ANTONY, KANICHATTUKUDY, KANJOOR, KANJOOR KIZHAKKUMBHAGOM, KANJOOR, ALUVA, ERNAKULAM, PIN 683575, PIN - 683575 BY ADV S.R.SREEJITH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT SREEJA V.- SR P.P ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ``` ``` ON 06.05.2022, ALONG WITH Bail Appl..3117/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- BA Nos. 3115 & 3117 of 2022 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 6[TH] DAY OF MAY 2022 / 16TH VAISAKHA, 1944 BAIL APPL. NO. 3117 OF 2022 ``` ## **`PETITIONER/S:`** ``` JOPHIN GEORGE AGED 32 YEARS SON OF GEORGE, KARINCHERY, KIZHAKKUMBHAGOM, KANJOOR ALUVA, ERNAKULAM, PIN - 683575 BY ADV S.R.SREEJITH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN 682 031, PIN - 682031 BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT SREEJA V. - SR P.P ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.05.2022, ALONG WITH Bail Appl..3115/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -3- BA Nos. 3115 & 3117 of 2022 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== B.A.Nos. 3115 & 3117 of 2022 ============================================================= Dated this the 6[th ] day of May, 2022 ## **ORDER** These Bail Applications are filed under Section 438 of Criminal Procedure Code. 2. The petitioners are accused in same crime number and therefore, I am disposing of these two bail applications by a common order. Petitioners are accused in Crime No.231 of 2022 of Kalady Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 143, 147, 148, 323, 324 and 326 read with Section 149 IPC. 3.The prosecution case is that on 28.02.2022 at about 3 pm, at the premises of Pooja Bar Kalady, the accused along with others manhandled the _de facto_ complainant and thereby committed the offences. -4- BA Nos. 3115 & 3117 of 2022 4. Heard counsel for the petitioners and the Public Prosecutor. The counsel for the petitioners submitted that the petitioners have not committed any offence. The counsel for the petitioners submitted that the petitioners are ready to abide any conditions, if this Court grant them bail. The public prosecutor seriously opposed the bail application. It is true that the allegations against the petitioners are serious. After hearing both sides, I think custodial interrogation of the petitioners are not necessary in the facts and circumstances of the case. In such circumstances, there can be a direction to the petitioners not to enter the jurisdictional limit of the police station concerned for a period of 30 days or till final report is filed in the case. 5. 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** -5- BA Nos. 3115 & 3117 of 2022 **(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. 6. Recently the Apex Court in **Siddharth v State of Uttar Pradesh and Another (2021(5)KHC 353)** considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder. “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made -6- BA Nos. 3115 & 3117 of 2022 routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.” 7. 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: 1. The petitioners shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail on 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 arresting officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as and when -7- BA Nos. 3115 & 3117 of 2022 required. The petitioners 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. 4. Petitioners shall not leave India without permission of the jurisdictional Court. 5. Petitioners 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. Petitioners shall not enter the jurisdictional limit of Kalady Police Station for a period of 30 days or till the final report is filed, whichever is earlier. Petitioners shall furnish the phone number and the details of the place where they will reside during the above period to the investigating officer on the date of surrender itself. 7. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the -8- BA Nos. 3115 & 3117 of 2022 bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated. sd/- **P.V.KUNHIKRISHNAN JUDGE** das -9- BA Nos. 3115 & 3117 of 2022 ## **`APPENDIX OF BAIL APPL. 3115/2022`** ``` PETITIONER ANNEXURES AnnexureCERTIFIED COPY OF THE ORDER DATED 31.3.2022 IN CRL.M.C. NO.628/2022 OF THE SESSIONS COURT, ERNAKULAM ``` -10- BA Nos. 3115 & 3117 of 2022 ## **`APPENDIX OF BAIL APPL. 3117/2022`** ``` PETITIONER ANNEXURES Annexure ACERTIFIED COPY OF THE ORDER DATED 8.4.2022 IN CRL.M.C. NO.717/2022 OF THE SESSIONS COURT, ERNAKULAM ```