Biju R v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942** ## **Bail Appl..No.7123 OF 2020** ## **CRIME NO.2171/2019 OF Vanchiyoor Police Station , Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **BIJU.R AGED 42 YEARS UTHRUTTATHI, MANGALA, PEPPARA DAM.P.O, VITHURA, VITHURA VILLAGE, NEDUMANGAD TALUK,, THIRUVANANTHAPURAM DISTRICT-695 551. 695551** **BY ADV. SRI.R.B.RAJESH** ## **RESPONDENT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682031** - **2 THE STATION HOUSE OFFICER AGED 27 YEARS 1) THE STATION HOUSE OFFICER, VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM. 2), 695035** - **3 VINCY. J. WILSON VINCY.J.WILSON, D/O JALAJA, AGED 30 YEARS, ‘SANTHA VILASAM’, KUTTIYANI, PANTHAPLAVU WARD, VATTAPPARA VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DISTRICT-695028 PIN-695028** **R1 BY PUBLIC PROSECUTOR SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.7123 OF 2020 2 **P.V.KUNHIKRISHNAN, J -------------------------------B.A.No.7123 of 2020 ------------------------------Dated this the 17th day of November 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.2171/2019 of Vanchiyoor Police Station, Thiruvananthapuram District. The above case is registered against the petitioner alleging offences punishable under Sections 341,294(b),506(1) and 354-A of the Indian Penal Code (IPC). It is submitted by the learned Public Prosecutor that, the offence under Section 354 of IPC is also subsequently added.** **3. The prosecution case is that, the defacto complainant is a lady lawyer practicing at Vachiyoor Court complex in Thiruvananthapuram District. It is the case of the defacto complainant that, because of the enimity that she appeared in a case against the** Bail Appl..No.7123 OF 2020 3 **petitioner, the petitioner wrongfully restrained the defacto complainant and abused her with filthy languages and threatened her. It is also alleged that, the petitioner outraged the modesty of the defacto complainant.** **4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.** **5. The learned counsel for the petitioner submitted that, this is a false case foisted against the petitioner by a lawyer, who is appearing against him. The learned counsel for the petitioner submitted that, even if the entire allegations are accepted, the offence under Section 354 IPC is not made out. The learned counsel submitted that, all other offences alleged against the petitioner are bailable offences. The learned counsel submitted that, the alleged incident happened on 29/08/2019 and the complaint was filed only on 23/09/2019. The learned counsel for the petitioner submitted that, there is absolutely no explanation for the same. The learned counsel for the petitioner submitted that the explanation given by the** Bail Appl..No.7123 OF 2020 4 **petitioner cannot be accepted because she is a lawyer.** **6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor submitted that, the allegations against the petitioner are very serious. A lady lawyer was wrongfully restrained and even attacked by the petitioner. In such cases, this Court may not entertained an application under Section 438 of Cr.P.C.** **7. After hearing both sides, I think this bail application can be allowed on stringent conditions. Of course, the allegations against the petitioner are very serious. The allegation is that a lawyer is restrained and abused and even assaulted. But the offences alleged against the petitioner are bailable, except the offence under Section 354 of IPC. Whether the offence under Section 354 IPC is made out or not, is a matter to be investigated by the Investigating Officer. I don't want to make any observation about the merit of this case. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions.** Bail Appl..No.7123 OF 2020 5 **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 this case, this Bail Application is allowed with the** Bail Appl..No.7123 OF 2020 6 ## **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) each 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** Bail Appl..No.7123 OF 2020 7 **him from disclosing such facts to the Court or to any police officer;** **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 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. 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.** **8. The petitioner shall appear before the Investigating Officer on all Mondays** Bail Appl..No.7123 OF 2020 8 **and Fridays at 10:00 a.m till the final report is filed.** **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **jms**