Dixon Peter v. State of Kerala

B.A.No.4469 of 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 03RD DAY OF AUGUST 2020 / 12TH SRAVANA, 1942** **Bail Appl..No.4469 OF 2020** **CRIME NO.212/2020 OF Kuthiyathode Police Station , Alappuzha** ## **PETITIONER/ACCUSED:** **DIXON PETER, AGED 29 YEARS, POOTHARAYIL HOUSE, PALLITHODE P.O ALAPPUZHA DISTRICT, KERALA-688540** **BY ADV. SRI.THOMAS ABRAHAM (NILACKAPPILLIL)** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031** **BY ADV.** **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.4469 of 2020 2 ## **P.V.KUNHIKRISHNAN, J.** ## **=================== B.A.No.4469 of 2020 =================== Dated this the 3[rd] day of August, 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 1[st] accused in Crime No. 212 of 2020 of Kuthiyathodu Police Station. The above case is registered alleging offences punishable under Sections 143, 147, 148, 323, 324, 325, 294(b), 341, 354 and 354 (A) read with Section 149 of the Indian Penal Code (IPC). 3. The prosecution case is that, the accused attacked the brother of defacto complainant. When the defacto complainant intervened, the accused assaulted the defacto complainant also by which the defacto complainant sustained a fracture on his nasal bone. It is B.A.No.4469 of 2020 3 also alleged that the family members of the defacto complainant were also attacked by the accused. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submits that, the only non bailable offence alleged against the petitioner is under Section 354 of the IPC. The counsel submitted subsequently an offence under Section 75 of the Juvenile Justice (Care and Protection of Children) Act is also added. According to the learned counsel, even if, the entire allegations are accepted the offence under Section 75 of the JJ Act is not made out. The counsel submitted that, the offence under Section 354 of the IPC is also not attracted in the facts and circumstances of the case. 6. The learned Public Prosecutor opposed the bail. The learned Public Prosecutor submitted that, the petitioner and the other accused assaulted the defacto complainant a lady aged 24 years. The learned Public B.A.No.4469 of 2020 4 Prosecutor submitted that, after the incident in this case, the petitioner attacked the defacto complainant and a case is registered against the defacto complainant. 7. Admittedly, the non bailable offences alleged against the petitioner are under Section 354 of the IPC and Section 75 of the JJ Act. Even if, the entire allegations are accepted, the offence under Section 75 of JJ Act is not attracted in this case. The petitioner is not the custodian of the child. As far as the offence under Section 354 of the IPC is concerned, the ingredients to attract the offence under Section 354 of the IPC is entirely different to the ingredients of Section 325 of the IPC. Whether these two will go together is a matter for investigation by the Investigating Officer. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. There is an allegations that the petitioner attacked the defacto complainant, after the incident. Therefore, there can be a direction to the petitioner, not enter the jurisdiction limit of the B.A.No.4469 of 2020 5 Kuthiyathodu Police Station, till the final report is filed in crime No. 212 of 2020. 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. B.A.No.4469 of 2020 6 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 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, she shall be released on bail 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 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_ B.A.No.4469 of 2020 7 _of the case so as to dissuade 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. The petitioner shall not enter the jurisdiction limit of the Kuthiyathodu Police Station, till the final report is filed in crime No. 212 of 2020._ If any of the above conditions are violated by the B.A.No.4469 of 2020 8 petitioner, 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** LU