C.T Jacob v. State of Kerala and Station House Officer, Kazhakuttam Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 25[TH] DAY OF APRIL 2024 / 5TH VAISAKHA, 1946 ``` ``` BAIL APPL. NO. 3002 OF 2024 ``` ``` CRIME NO.355/2024 OF Kazhakkuttom Police Station, ``` ``` Thiruvananthapuram ``` ## **`PETITIONER/S:`** ``` C.T JACOB AGED 80 YEARS S/O. LATE C.C THOMAS, RESIDING AT K.P.1/507-A, CHATHAMPADAM (H), RAMACHANDRA NAGAR, KAZHAKKUTTOM P.O, THIRUVANANTHAPURAM, PIN - 695582 BY ADV MAJIDA.S ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER KAZHAKUTTAM POLICE STATION, TRIVANDRUM, PIN - 695582 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.3002 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.3002 of 2024** ## **-----------------------------------** ## **Dated this the 25[th] day of April, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.355/2024 of Kazhakkuttam Police Station, Thiruvananthapuram, registered against him, for allegedly committing the offences punishable under Sections 376 (2) (f), 376(2) (n) and 506 of the Indian Penal Code, 1860 _(‘IPC’, for short)_ and Sec.66(E) of the Information Technology Act. 3. The gravamen of the prosecution allegation is that: the accused, who is the father-in-law of the de facto complainant, with an intention to commit rape and blackmail her, had showed her nude photographs and thereafter, from the last week of April, 2006 to 2018, he continuously raped her. In April, 2016, he took her nude 3 BA No.3002 of 2024 photographs on his mobile phone and threatened her that he would circulate the photographs on the internet and You Tube channel. Consequently, the de facto complainant escaped from the house of the accused and went to her parental home. On 10.3.2024, at around 12 noon, the accused again threatened the de facto complainant that he would circulate her photos on the You Tube. Thus, the accused has committed the above offences. 4. Heard; Smt.S Majida, the learned counsel appearing for the petitioner and Smt.Neema T.V, the learned Public Prosecutor appearing for the respondents. 5. The learned counsel for the petitioner strenuously argued that the petitioner is totally innocent of the accusations levelled against him. The petitioner is aged 80 years . The petitioner’s son is married to the de facto complainant. Their marital relationship is totally strained. Even though they got married in the year 2006, the marriage ran into rough waters in 2008. Subsequently, the de facto complainant had instituted Annexure-2 original petition before the Family Court for dissolution of her 4 BA No.3002 of 2024 marriage with her husband and Annexure-3 complaint before the jurisdictional Magistrate, under the provisions of Protection of Women from Domestic Violence Act as against her husband and his parents, including the petitioner. Subsequently, the subject-matter in dispute was settled between the parties as per Annexure-4 compromise petition. But, again disputes arose and the de facto complainant took her belongings from the matrimonial home in the year 2018 as evidenced by Annexure-5 receipt. Immediately, thereafter, she filed Annexure-6 original petition before the Family Court against the petitioner, his wife and his son, seeking a decree for return of money and gold ornaments. She also filed Annexure-7 petition, for a decree of divorce, and Annexure-8 Maintenance Case for an order of maintenance. In none of the abovementioned petitions, the de facto complainant has raised the allegation that the petitioner had committed rape on her. It is only as an arm-twisting tactic to get the subject-matter in dispute settled as per the whims and fancies of the de facto complainant, that she has presently filed Annexure-1 5 BA No.3002 of 2024 frivolous FIR on 12.3.2024 for matters that occurred nearly 18 years back. The very fact that Annexure-1 FIR has been registered only on 12.3.2024 for the incident that occurred from 1.4.2006 proves the falsity in the crime. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. The learned counsel relied on the decision of the Hon’ble Supreme Court in **Bhadresh Bipinbhai Sheth vs State of Gujarat and another** [2015 KHC 4579] to fortify her contentions that the Court should always examine the genuineness of the complaint where a family dispute is involved. She submitted that the ratio laid down in the above decision squarely applies to the facts of the case. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She contended that the investigation in the case is in progress. Nonetheless, she did not dispute the fact that there is no material to substantiate the accusations made by the de facto complainant. She also stated that the allegation that the petitioner raped the de 6 BA No.3002 of 2024 facto complainant was from the year 2006 onwards and the FIR has been filed nearly after 18 years. 7. On an evaluation of the prosecution allegation, it can be deciphered that the de facto complainant has alleged that the petitioner raped her from the last week of April, 2006. Admittedly, the de facto complainant had instituted Annexures 2 and 3 original petition and complaint, respectively, before the Courts of competent jurisdiction against the petitioner. A reading of the allegations in Annexures 2 and 3, would substantiate that there is not even a whisper regarding the allegations presently raised in Annexure-1 FIR. Subsequently, the dispute was settled between the parties as per Annexure-4 compromise petition. Later, the de facto complainant instituted Annexure- 6 original petition in the year 2018, against the petitioner, his wife and his son. In the said petition also there is not a whisper that the petitioner has raped the de facto complainant as alleged in the Annexure1 FIR. Furthermore, there is no explanation in Annexure-1 FIR for the inordinate delay in registering the FIR. 7 BA No.3002 of 2024 8. The Hon’ble Supreme Court in **Bhadresh Bipinbhai Sheth** (supra) has categorically laid down the principles for the purpose of granting orders of pre-arrest bail in cases involving in family disputes. It is apposite to extract the relevant portion of the judgment, which reads thus: “23. The principles which can be culled out, for the purposes of the instant case, can be stated as under: (i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The Court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the Investigating Officer is established then action be taken against the investigating officer in accordance with law. (ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the Court. (iii) It is imperative for the Courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the Court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire 8 BA No.3002 of 2024 community. Most people do not make any distinction between arrest at a pre - conviction stage or post - conviction stage. (iv) There is no justification for reading into S.438 CrPC the limitations mentioned in S.437 CrPC. The plentitude of S.438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by S.438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the Court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. (v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the Court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the Court may either reject the anticipatory bail application or confirm the initial order of granting bail. The Court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same Court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the Court is misused. The anticipatory bail granted by the Court should ordinarily be continued till the trial of the case. (vi) It is a settled legal position that the Court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time. (vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the Trial Court, then it would be unreasonable to compel the accused to surrender before the Trial Court and again apply for regular bail. (viii) Discretion vested in the Court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the Court under S.438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the Legislature to a rigorous code of self - imposed limitations. (ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all 9 BA No.3002 of 2024 circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with Legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. (x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail: (a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of S.34 and S.149 of the Penal Code, 1860 the Court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 10 BA No.3002 of 2024 9. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, and also taking note of the law laid down by the Hon’ble Supreme Court in the aforecited decision and on comprehending the conspicuous absence of any allegations regarding the alleged rape committed by the petitioner on the de facto complainant in Annexures 2, 3 and 6 as now alleged in Annexure-1 FIR, I am of the prima facie view that the allegations levelled against the petitioner seem to be false and frivolous. Nonetheless, that is a matter to be considered by the Investigating Officer after investigation. I do not want to express anything more on this aspect since it is not necessary while considering an application for bail. 10. However, I am convinced and satisfied that the petitioner has made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code of Criminal Procedure. Hence, I am inclined to allow the bail application subject to the condition that the petitioner co-operates with the Investigating Officer. 11 BA No.3002 of 2024 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 for the like amount each; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever; 12 BA No.3002 of 2024 - (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 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. - (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]. 13 BA No.3002 of 2024 (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/- ## **C.S.DIAS,JUDGE** sks/25.04.24