High Court of KeralaSingle Judge2020-09-23Bail granted with stringent conditions.

Bail Application No. 5658 of 2020

Case / Petition Number:B.A.No.5658 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-09-23
Court Decision / Holding: This Bail Application is allowed on stringent conditions, including appearance before the IO within ten days, bond of Rs.50,000 with two solvent sureties, ongoing cooperation with investigation, not to induce witnesses, restriction from entering the de facto complainant’s residence till investigation is complete, and compliance with COVID-19 social distancing norms. The court cautioned that violation can lead to cancellation of bail by the jurisdictional Court.
Final Disposition: Bail granted with stringent conditions.

Parties to the Case

Appellants / Petitioners

Prakasan K

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam-682031
The Station House Officer, Hill Palace Police Station, Thripunithura, Pin-682301

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Thomas T. Varghese
• Sri. Philip T. Varghese

Counsels for Respondents

• Sri. Renjith T.R., PP

Case Synopsis & Summary

Prakasan K, the petitioner, sought bail under Section 438 CrPC in Crime No. 528/2020 of Hill Palace Police Station, Ernakulam, alleging offences under Section 323 IPC and Section 23 read with Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, arising from two incidents on 17 May 2020 and 19 May 2020 in which he is said to have assaulted his minor son aged about 11 ½ years. The petitioner claimed a matrimonial dispute as the motive for the complaint and argued that the only non-bailable offence is under the JJ Act; he asserted entitlement to the benefit of a Full Bench decision of this Court and that the marital relationship with the de facto complainant continues. The Public Prosecutor opposed bail, contending the father assaulted his own child and bail should be refused. The Court, after hearing the arguments, observed that the injuries were minor, the marital relationship persisted, and the maximum punishment under Section 75 JJ Act is three years. It held that the bail could be granted on stringent conditions in light of COVID-19 considerations and general bail jurisprudence. Directions include appearance before the IO within ten days, a bond of Rs. 50,000 with two sureties, obedience to investigation, non-avoidance of the de facto complainant’s residence, and adherence to social distancing norms. The order notes COVID-19 prison directives and principles from Chidambaram P. v. Directorate of Enforcement and the Suo Motu COVID case. The bail is granted subject to conditions, with the court emphasizing that the bail rule governs unless exceptions apply.

Provisions of Law Cited

Section 438 of the Criminal Procedure Code (Cr.P.C.)Section 323 IPCSection 23 read with Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015

Legal Doctrines & Maxims

Bail is the rule and jail is the exception.
The basic jurisprudence relating to bail remains the same; bail is the rule and refusal is the exception to ensure a fair trial.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel argued that a matrimonial dispute led to the complaint, the only non-bailable offence alleged is under Section 75 of the JJ Act, and the maximum punishment for this offence is three years. The petitioner contended for bail under Section 438 CrPC, referencing a Full Bench decision and the ongoing marital relationship with the de facto complainant, arguing likelihood of false accusation.

Contentions of Respondents

The Public Prosecutor opposed bail, contending that the petitioner assaulted his own child and that bail should be refused given the seriousness of the alleged offences and the nature of the complaint.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)	Suo Motu Writ Petition(C) No.1 of 2020	Mentioned Only	Cited to justify social distancing and related directives in prisons during the pandemic.
Chidambaram P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Cited for the proposition that bail is the rule and the basic jurisprudence on grant of bail remains constant.
W.P(C)No.9400 of 2020	W.P(C) No.9400 of 2020	Mentioned Only	Full Bench directions of the same court cited as supportive guidance on minimizing prison population and related norms.

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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** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **Bail Appl..No.5658 OF 2020** **AGAINST THE ORDER IN CRMC 1292/2020 DATED 01-07-2020 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **CRIME NO.528/2020 OF Hill Palace Police Station , Ernakulam** ## **PETITIONER:** **PRAKASAN K AGED 40 YEARS KARAKKATTUPARAMBIL HOUSE, KACHAPPILLY ROAD, PONNURUNNI, VYTILLA ERNAKULAM, PIN-682019** **BY ADVS.** **SRI.THOMAS T.VARGHESE SRI.PHILIP T.VARGHESE** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031 2 THE STATION HOUSE OFFICER HILL PALACE POLICE STATION, THRIPUNITHURA, PIN-682301** ## **SRI.RENJITH.T.R.,PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.5658 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.5658 of 2020 ------------------------------Dated this the 23[rd] day of September, 2020 ## **O R D E R** This Bail Application is filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the accused in Crime No.528 of 2020 of Hill Palace Police Station, Ernakulam. The above case is registered against the petitioner alleging offence punishable under Section 323 IPC and Section 23 read with Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short J.J Act). 3.The prosecution case is that on 17.5.2020 and on 19.5.2020, the petitioner who is the father of the minor victim assaulted the victim intentionally and thereby committed the B.A.No.5658 of 2020 3 offence. The victim is aged 11 ½ years old. 4. Heard the counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that there is some matrimonial dispute between the petitioner and his wife. That is why this false complaint is foisted against him. The counsel submitted that the only non bailable offence alleged against the petitioner is u/s.75 of the J.J.Act. The counsel submitted that the maximum punishment that can be imposed under Section 75 of the J.J Act is three years. The counsel submitted that therefore, he is entitled the benefit of the Full Bench decision of this Court. The counsel also submitted that the marital relationship between the petitioner and the de facto complainant is even now in existence. 6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner assaulted his own son and hence the petitioner is not entitled orders u/s.438 B.A.No.5658 of 2020 4 Cr.P.C. 7.After hearing both sides, I think this bail application can be allowed on stringent conditions. Admittedly, the marital relationship between the petitioner and the de facto complainant is in existence even now. The only non bailable offence alleged against the petitioner is u/s.75 of the J.J Act. The maximum punishment that can be imposed u/s.75 of the J.J Act is three years. The injuries sustained to the victim is minor. 8. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. But I make it clear that if the petitioner enter the house where the de facto complainant and children are residing, the Court below can cancel this bail order without getting any further order from this Court. The Investigating Officer in this case will intimate the victim about this condition. 9. Moreover, considering the need to follow social B.A.No.5658 of 2020 5 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. 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 B.A.No.5658 of 2020 6 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 propose 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 B.A.No.5658 of 2020 7 facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 4. Petitioner shall not leave India without permission of the jurisdictional Court. 5. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is 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. 7. The petitioner shall not enter the house where the de facto complainant and her children are residing till the investigation in B.A.No.5658 of 2020 8 Crime No.528 of 2020 of Hill Palace Police Station is completed. The Investigating Officer will inform the de facto complainant about this condition. If there is any violation of the above condition, the Investigating Officer will do the needful in accordance with law. 8. 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** cms