BOBY @ AJI v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 4[TH] DAY OF MAY 2022 / 14TH VAISAKHA, 1944 BAIL APPL. NO. 2347 OF 2022** ## **petitioner:** BOBY @ AJI AGED 45 YEARS S/O LAZER FERNANDEXZ, VADAKKEKOLADI CHERI THOPPIL, SAKTHIKULANGARA P.O. KOLLAM ., PIN - 691003 BY ADVS. M.JAYAKRISHNAN SHAJI MATHEW N.M. ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ., PIN - 682031 2 STATION HOUSE OFFICER SAKTHIKULANGARA POLICE STATION, RAMANKULANGARA, SAKTHIKULANGARA P.O., KOLLAM., PIN - 691003 ADV SREEJA V- SR P.P THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 2347 OF 2022** **2** ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.2347 of 2022 ------------------------------Dated this the 4[th] day of May, 2022 ## **O R D E R** This Bail Application is filed under Section 438 of Criminal Procedure Code. 2. The petitioner is the accused in crime no.147/2022 of Sakthikulangara Police Station. The above case is registered against the petitioner alleging offence punishable under Section 451, 354 and 354(A) of the IPC. 3. The prosecution case is that the petitioner trespassed into the house of the defacto complainant, while the defacto complainant was conducting tuition for students. It is alleged that the petitioner misbehaved to the defacto complainant. It is also alleged that the petitioner attempted to pull the defacto complainant close to his body and had expressed his wish to kiss her. 4. Heard counsel for the petitioner and the Public Prosecutor. The Counsel for the petitioner submitted that even if the entire **BAIL APPL. NO. 2347 OF 2022** **3** allegations are accepted, the offence under Section 354 of the IPC is not made out. The counsel submitted that Section 354(A) is a bailable offence. The Counsel for the petitioner submitted that there is a civil dispute between the petitioner's family and the family of the defacto complainant. That is why the false case is foisted against the petitioner. The Public Prosecutor submitted that the petitioner attempted to outrage the modesty of the defacto complainant in front of her students. The Public Prosecutor submitted that in such situation, this Court may not grant anticipatory bail to the petitioner. It is true that the allegation against the petitioner are very serious. But the petitioner says that there is a boundary dispute between the family of the petitioner and the defacto complainant. This Court is not in a position to accept the same at this stage. But, after going through the facts and circumstances of the case, it is clear that custodial interrogation of the petitioner may not be necessary. It is a case to be proved before the appropriate Court at the appropriate stage by adducing oral evidence. In the light of the same, the petitioner can be released on bail on stringent conditions. Since the petitioner **BAIL APPL. NO. 2347 OF 2022** **4** is a neighbour of the defacto complainant, the petitioner shall not enter the jurisdictional limit of the Police Station for a period of 60 days or till final report is filed in the above 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 (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 **BAIL APPL. NO. 2347 OF 2022** **5** 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 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 petitioner 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 petitioner he 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 **BAIL APPL. NO. 2347 OF 2022** **6** satisfaction of the arresting 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 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 not enter the jurisdictional limit of Sakthikulangara Police Station, Kollam, for a period of 60 days or till final report is filed, whichever is earlier. 7. If any of the above conditions are violated **BAIL APPL. NO. 2347 OF 2022** **7** by the petitioner, the jurisdictional Court can cancel the 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** Nsd **BAIL APPL. NO. 2347 OF 2022** **8** ## **APPENDIX OF BAIL APPL. 2347/2022** PETITIONER ANNEXURES Annexure A1 CERTIFIED COPY OF THE FIR IN CRIME NO. 147/2022 OF SAKTHIKULANGARA POLICE STATION KOLLAM DISTRICT ALONG WITH THE FIS DATED 23.02.2022 Annexure A2 FREE COPY OF THE ORDER DATED 11.03.20222 IN CRL.M.C. NO. 423/2022 ON THE FILES OF THE ADDITIONAL SESSIONS COURT IV, KOLLAM.