Bail Application No. 5818 of 2024

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL. NO. 5818 OF 2024** **CRIME NO.885/2024 OF Ottapalam Police Station, Palakkad** **PETITIONER/S:** **XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX** **BY ADV NIREESH MATHEW** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI., PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** BAIL APPL. NO. 5818 OF 2024 2 ## **C.S.DIAS,J** **----------------------------------------------Bail Application No.5818 of 2024 -----------------------------------------------Dated this the 26[th] day of July, 2024** ## **O R D E R** The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( in short, 'BNSS'), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.885/2024 of the Ottapalam Police Station, Palakkad, which is registered against the accused, for allegedly committing the offences punishable under Sections 451 and 354 of the Indian Penal Code. 3. The gist of the prosecution case is that: the defacto complainant's husband is the brother of the petitioner's wife, that is, the petitioner is the brother-inlaw of the defacto complainant's husband. On 12.06.2024, at around 10:20 hours, the accused with an intention to outrage the modesty of the defacto BAIL APPL. NO. 5818 OF 2024 3 complainant, when nobody was there in the house of the defacto complainant, trespassed into the house, hugged the defacto complainant and attempted to remove her churidar pants. Thus, the accused has committed the above offences. 4. Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioner and Smt. Neema T.V., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. The petitioner's father had bequeathed the family properties in favour of the petitioner's wife. It is out of this animosity that the petitioner's brother-in-law had instigated his wife/victim to lodge the present frivolous complaint. The petitioner is happily living with his family and is a law abiding citizen. The petitioner does not have any criminal antecedents. The victim and her husband had attempted to trespass into the property. When, the petitioner was proposing to file a civil suit, the present complaint is BAIL APPL. NO. 5818 OF 2024 4 filed with the sole intention to pressurise the petitioner to yield to the unlawful demands of the victim and her husband. The petitioner’s custodial interrogation is and no is to be effected. unnecessary recovery Moreover, the very fact that there is an inordinate delay of 13 days in lodging Annexure A1 FIR, proves the falsity in the crime. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the petitioner's involvement in the crime. The investigation is in progress. If the petitioner is granted an order of pre-arrest bail, it may hamper the investigation. Hence, the application may be dismissed. 7. The prosecution case against the petitioner is that, he trespassed into the house of the victim and attempted to remove her pants and outrage her modesty. Indisputably, the petitioner is the brother-inlaw of the victim's husband. There are disputes between the parties in connection with their family properties. It BAIL APPL. NO. 5818 OF 2024 5 is when the petitioner was contemplating to file a suit, that the present complaint has been filed. Admittedly, the FIR was registered 13 days after the incident. Therefore, I find some frivolity in the prosecution. Nonetheless, that is a matter to be investigated and ultimately decided at the time of trial. 8. In **Bhadres Bipinbhai Sheth v. State of Gujarat and another** [2015 KHC 4579] the Hon'ble Supreme Court has succinctly culled out the principles to grant orders of pre-arrest bail. It is laid down that Courts should be careful and meticulous in evaluating the facts of each case before granting an order of prearrest bail. The court should consider whether arresting of an accused would lead to ignominy, humiliation and disgrace to the accused and their family and also if there is any frivolity in the complaint registered against the accused. 9. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the fact that BAIL APPL. NO. 5818 OF 2024 6 there are property disputes between the petitioner and the victim, that the FIR was registered 13 days after the alleged incident, that the petitioner and the victim are near relatives and that the petitioner does not have any criminal antecedents, I am satisfied that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the petitioner is entitled to an order of pre-arrest bail, but subject to the condition that the petitioner cooperates with the Investigating Officer. In the result, the application is allowed subject to the following conditions: (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like amount each; (iii) The petitioner shall appear before the BAIL APPL. NO. 5818 OF 2024 7 Investigating Officer for interrogation, as and when directed by the Investigating Officer. (iv) The petitioner shall not directly or indirectly make inducement or threat to the defacto any complainant or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before the said court within the said period; (vi)The petitioner shall not get involved in any other offence while on bail; (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. BAIL APPL. NO. 5818 OF 2024 8 (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- rkc/26.7.2024 **C.S.DIAS, JUDGE**