Bail Appl..No.6440 OF 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 14TH DAY OF OCTOBER 2020 / 22ND ASWINA, 1942** ## **Bail Appl..No.6440 OF 2020** **CRIME NO.203/2020 OF Pothukal Police Station , Malappuram** **PETITIONERS:** - **1 ABDUL MUBARACK T.M. AGED 33 YEARS SON OF MUHAMMED THECHIYODAN HOUSE, KURUMBALANGODE P.O., CHUNGATHARA, NILAMBUR, MALAPPURAM DISTRICT PIN-679334** - **2 AZHARUDHEEN T.M AGED 35 YEARS SON OF MUHAMMED, THECHIYODAN HOUSE, KURUMBALANGODE P.O., CHUNGATHARA, NILAMBUR, MALAPPURAM DISTRICT PIN-679334** - **3 MUHAMMED T AGED 58 YEARS SON OF ALAVI, THECHIYODAN HOUSE, KURUMBALANGODE P.O., CHUNGATHARA, NILAMBUR, MALAPPURAM DISTRICT PIN-679334** **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN-682031** - **2 THE STATION HOUSE OFFICER POTHUKAL POLICE STATION, MALAPPURAM DISTRICT, PIN-679 334** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 6440 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No. 6440 of 2020 ------------------------------- Dated this the 12[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. Petitioners are the accused in Crime No.203 of 2020 of Pothukal Police Station, Malappuram. The above case is registered against the petitioners alleging offences punishable under Sections 341, 324, 326, 307, 506 r/w. Section 34 IPC. 3. The prosecution case is that the petitioners 1 and 2 are the sons of 3[rd] petitioner. The elder son ie, the 2[nd] petitioner got married to one Shahana and in the said wedlock,there are two children. There was some matrimonial dispute between the 2[nd] petitioner and the above Shahana. The son is with the 2[nd] petitioner and the daughter is with the mother. The allegation is that Shahana, wife of the 2[nd] petitioner came to the house of the petitioners to take the elder son. They were living B.A.No. 6440 of 2020 3 separately because of some matrimonial dispute. Then it is alleged that the incident happened. 4. Heard the counsel for the petitioners and the learned Public Prosecutor. 5. The counsel for the petitioners submitted that the petitioners also sustained injuries in this case. The incident is not happened as alleged by the prosecution. The counsel taken me through the wound certificate produced along with the bail application. Those are the wound certificate of the petitioners. The counsel submitted that lacerated wound is also sustained to some of the injured and the injury in some cases are on scalp. The counsel submitted that even though intimation was given to the police no case is registered against the de facto complainant and their party. The counsel submitted that the entire incident happened in connection with a matrimonial dispute between the 2[nd] petitioner and his wife. The dispute started in connection with the custody of the child. The counsel submitted that there is every chance for a reunion between the B.A.No. 6440 of 2020 4 2[nd] petitioner and his wife. The counsel submitted that the petitioners are ready to abide any conditions, if this Court grant them bail. 6. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that very serious injury is sustained to the father-in-law of the 2[nd] petitioner. The Public Prosecutor submitted that the 1[st] petitioner inflicted the fatal injury. The Public Prosecutor submitted that the petitioners may not be released on bail under Section 438 Cr.P.C. 7. It is an admitted fact that there is matrimonial dispute pending between the 2[nd] petitioner and his wife. The injured in this case is the father-in-law of the 2[nd] petitioner. The admitted case is that the de facto complainant and others came to the house of the petitioners for getting custody of the child from the 2[nd] petitioner. The alleged place of occurrence is the house of the petitioner. According to the petitioners, the incident is not happened as alleged by the prosecution. According to the petitioners, they sustained injury. But no case is registered by B.A.No. 6440 of 2020 5 the police. There is allegation and counter allegation about the same incident. The incident happened in connection with the matrimonial dispute between the 2[nd] petitioner and her wife. The de facto complainant and party came to the house of the petitioners for getting custody of the child from the 2[nd] petitioner. I do not want to make any observation about the merit of the case. I cannot decide which version is correct. 8. Considering the entire facts and circumstances of the case and considering the fact that the matrimonial relationship between the 2[nd] petitioner and his wife is even now in existence, I think this bail application can be allowed on stringent conditions. 9. 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. B.A.No. 6440 of 2020 6 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 directions: 1. The petitioners 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 petitioners, they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand B.A.No. 6440 of 2020 7 only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as and when 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. The petitioners shall strictly abide by B.A.No. 6440 of 2020 8 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 petitioners shall appear before the Investigating Officer on all Mondays and Fridays at 10.a.m for a period of two months from today. 8. If any of the above conditions are violated by the petitioners, 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