High Court of KeralaSingle Judge2023-12-07Anticipatory bail granted with conditions; no c...

Ghalib Moideen v. State of Kerala and Addl R2 (impleaded)

Case / Petition Number:BAIL APPL. NO. 6010 OF 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Gopinath P.
Judgment Date: 2023-12-07
Court Decision / Holding: The court grants anticipatory bail to the petitioner on conditions: (i) bond of Rs. 50,000 with two solvent sureties; (ii) appearance before the investigating officer on specified dates; (iii) no influence or communication with the de-facto complainant via social media or otherwise; (iv) no contact with the de-facto complainant or interference with the investigation or witnesses; (v) no involvement in any other crime while on bail. If violated, the bail can be canceled. The court notes the investigation can proceed without custodial interrogation and that the marriage had irretrievably broken down, with the precautionary conditions ensuring the integrity of the investigation.
Final Disposition: Anticipatory bail granted with conditions; no custodial arrest required at this stage.

Parties to the Case

Appellants / Petitioners

Ghalib Moideen

Respondents

State of Kerala, represented by Public Prosecutor, High Court of Kerala
Addl R2 Shaba Kizhakkevely, D/O Late K. M. Jabaaz (impleaded)

Legal Representation & Advocates

Counsels for Petitioners

• Amrin Fathima
• Kavya P.R.
• Micky Antony Rohan
• P. Vijaya Bhanu (Sr.)

Counsels for Respondents

• Peeyus A. Kottam
• Hrithwik D. Namboothiri
• Sri. G. Sudheer (PP)

Case Synopsis & Summary

This is an anticipatory bail application by Ghalib Moideen, the first accused in Infopark Police Station Crime No. 926 of 2023, alleging offences under IPC sections 498A, 323, 324 and 34, and involving alleged dowry harassment and cruelty towards a de-facto wife. The de-facto complainant’s marriage began in 2015; a minor child was born in 2017 and custody disputes were ongoing in the Family Court. In Oct 2022, the younger sister filed a complaint invoking the POCSO Act against the petitioner; later, in June 2023, the de-facto complainant filed the present complaint, containing serious allegations of physical abuse and other cruelty. The petitioner maintains innocence, contending that the photos relied upon do not establish injuries attributable to him and that marks resulted from a staircase fall; he notes the marriage had irretrievably broken down in 2021 and argues that the delay in filing should not bar inquiry. The respondents contend that the allegations are grave and not merely a matrimonial feud, citing paragraphs 13–15 of the complaint and the ongoing family-custody proceedings. After hearing, the court observes that while serious allegations exist, the investigation can proceed without custodial interrogation and the marriage has irretrievably broken down. It grants anticipatory bail with conditions, finding no necessity for arrest and emphasizing compliance with safeguards to prevent interference or witness tampering.

Provisions of Law Cited

Indian Penal Code: sections 498A, 323, 324, 34POCSO Act (Protection of Children from Sexual Offences Act)

Legal Doctrines & Maxims

Best interest of the minor child
Deemed custody for purposes of recovery (as per Sushila Agarwal v. State (NCT of Delhi) and Another, (2020) 5 SCC 1)
Anticipatory bail is granted subject to conditions

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends absolute innocence and denies any sustained or physical cruelty. He argues that the allegations of cruelty stem from ongoing matrimonial disputes and that the photographs relied upon do not demonstrate injuries attributable to him. He points to a prolonged separation since February 2021 and notes that the sister’s POCSO complaint in Oct 2022 preceded the June 2023 complaint for matrimonial cruelty. He asserts there is no direct link between the alleged conduct and the petitioner, and that delay in lodging the complaint should not automatically negate the possibility of a fair investigation. He submits that bail, with appropriate conditions, will ensure cooperation with investigators and safeguard his rights while not undermining the investigation. He requests anticipatory bail on grounds of preservation of family life and the minor child’s best interests, pending a fair inquiry.

Contentions of Respondents

The State and the de-facto complainant oppose bail, arguing that the allegations amount to extreme cruelty beyond a mere matrimonial dispute and are supported by the complaint’s paragraphs 13–15, revealing serious acts of abuse. They highlight the earlier POCSO complaint and the ongoing custody proceedings in Family Court, suggesting that the conditions of bail are necessary to prevent tampering and ensure cooperation. They emphasize the severity of the charges under IPC and the potential risk to the female complainant and the child, asserting that the investigation warrants custodial safeguards and cautious monitoring of the accused’s conduct to prevent intimidation or contact with the complainant. They contend that the defense’s delay and the presence of a minor involved in related proceedings justify stringent scrutiny before granting anticipatory bail.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Agarwal v. State (NCT of Delhi) and Another	[(2020) 5 SCC 1]	Positive	Cited to support the principle that a bail order’s conditions may suffice and that the petitioner can be regarded as in custody for recovery purposes as per established precedent.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 BAIL APPL. NO. 6010 OF 2023 ``` ## **`CRIME NO.926/2023 OF INFOPARK POLICE STATION, ERNAKULAM DISTRICT`** ## **`PETITIONER:`** ``` GHALIB MOIDEEN, AGED 33 YEARS, S/O. M.A. MOIDEEN, 39/357, MADATHIL, MADATHIPARAMBU ROAD, VENNALA P.O, ERNAKULAM, KERALA, PIN – 682 028. BY ADVS. AMRIN FATHIMA KAVYA P.R. MICKY ANTONY ROHAN P.VIJAYA BHANU (SR.) ``` ## **`RESPONDENT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. 2ADDL R2 SHABA KIZHAKKEVELY, D/O LATE K. M. JABAAZ, 48/425B, KIZHAKKEVELY, ELAMAKKARA, KOCHI, PIN – 682 026. ADDL R2 IS IMPLEADED AS PER ORDER DATED 07.12.2023 IN CRL.M.A.No.2 of 2023. ``` ``` BY ADVS. ``` ``` PEEYUS A.KOTTAM HRITHWIK D. NAMBOOTHIRI SRI. G. SUDHEER (PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BAIL APPL. NO. 6010 OF 2023 2 ## ORDER ## This is an application for anticipatory bail. 2. The petitioner is the 1[st] accused in Crime No.926 of 2023 of Infopark Police Station, Ernakulam District, alleging commission of offences under Sections 498A, 323, 324 and 34 of the Indian Penal Code. The allegation against the petitioner is that after the marriage of the petitioner with the de-facto complainant in the month of December, 2015 and about four months into the marriage, the petitioner started mentally and physically harassing the de-facto complainant with demands for dowry. It is alleged that a minor child was born out of the relationship between the petitioner and the de-facto complainant in June 2017. It is alleged that the relationship between the petitioner and the de-facto complainant worsened and they started living separately and proceedings for custody of the minor child were commenced in the Family Court, Ernakulam. In the month of October 2022, the younger sister of the de-facto complainant filed a complaint alleging commission of offences under the POCSO Act against the petitioner. In the month of November, 2022, the petitioner was BAIL APPL. NO. 6010 OF 2023 3 granted anticipatory bail in that case and in the month of June 2023, the de-facto complainant filed a complaint leading to registration of Crime No.926 of 2023 of Infopark Police Station, containing serious allegations of physical abuse and other forms of cruelty by the petitioner. 3. The learned Senior Counsel appearing for the petitioner on the instructions of Adv.Amrin Fathima would contend that the petitioner is absolutely innocent in the matter. It is submitted that allegations of cruelty have been raised only on account of other matrimonial disputes between the petitioner and the de-facto complainant. It is submitted that the petitioner has never abused the de-facto complainant physically and the photographs produced by the de-facto complainant before this Court do not indicate the correct picture and the injuries seen in those photographs were not injuries inflicted by the petitioner. It is submitted that the defacto complainant had fallen down from the staircase and had sustained injuries and now those injuries are projected as if they were inflicted by the petitioner. It is submitted that even after the filing of the complaint by the younger sister of the defacto complainant invoking the provisions of the POCSO Act in BAIL APPL. NO. 6010 OF 2023 4 the month of October 2022, no allegation of matrimonial cruelty has been raised against by the petitioner till June 2023. In other words, it is submitted that even after the marriage had irretrievably broken down, the de-facto complainant waited for nearly eight months after the filing of the complaint by the sister of the de-facto complainant invoking the provisions of the POCSO Act to file a complaint alleging matrimonial cruelty. It is submitted that in such circumstances, the petitioner may be granted anticipatory bail subject to conditions. 4. The learned Public Prosecutor and the learned counsel appearing for the de-facto complainant would vehemently oppose the grant of bail. It is submitted that this is not a case where the allegations of cruelty at the hands of the petitioner / husband of the de-facto complainant had been raised on account of other matrimonial disputes. Reference is made in this regard to paragraphs 13, 14 and 15 of the complaint filed by the de-facto complainant leading to registration of Crime No.926 of 2023 of Infopark Police Station, Ernakulam District, to show that there are extremely serious allegations against the petitioner. It is submitted that a reading of the complaint will indicate that the de-facto BAIL APPL. NO. 6010 OF 2023 5 complainant was subjected to cruelty of an extreme kind by the petitioner. 5. The learned counsel appearing for the de-facto complainant would add that no benefit can be derived by the petitioner by stating that there was delay in filing the complaint by the de-facto complainant. It is submitted that owing to the fact that a child was born out of the relationship between the petitioner and the de-facto complainant, the de-facto complainant was trying to save the marriage taking into consideration of the best interest of the minor child. It is submitted that in such circumstances, it does not lie in the mouth of the petitioner to contend that there was delay in filing the complaint and to suggest that the allegations are false. It is submitted that the photographs filed along with Crl.M.A.No.2 of 2023(impleading petition filed by the de-facto complainant)are referred to point out that the de-facto complaint had suffered serious injuries owing to physical assault and abuse by the petitioner. 6. Having heard the learned Senior Counsel appearing for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the de-facto complainant, I am of BAIL APPL. NO. 6010 OF 2023 6 the view that the petitioner can be granted anticipatory bail subject to conditions. From the sequence of events noticed above, it is clear that the marriage between the petitioner and the de-facto complainant had irretrievably broken down at least by the month of October 2022 when a case invoking the provisions of the POCSO Act had been registered against the petitioner at the instance of the younger sister of the de-facto complainant. The petitioner and the de-facto complainant have been living separately from February 2021 onwards. However, the complaint raising serious allegations of matrimonial cruelty against the de-facto complainant appears to have been filed only in the month of June 2023. While this may not be fatal to the prosecution case, it is a factor that can be considered while considering the anticipatory bail application of the petitioner. In other words, even after raising serious allegations invoking the provisions of the POCSO Act against the petitioner (at the instance of the younger sister of the de-facto complainant), the allegations of matrimonial cruelty were raised only about eight months later, in the month of June 2023. There appear to be proceedings before the Family Court between the petitioner and the de-facto complainant regarding custody of the child. BAIL APPL. NO. 6010 OF 2023 7 The investigation into Crime No.926 of 2023 of Infopark Police Station can be property carried out without the custodial interrogation of the petitioner. 7. Therefore, this application for anticipatory bail is allowed and the petitioner is directed to be released on anticipatory bail in the event of his arrest in connection with Crime No.926 of 2023 of Infopark Police Station, subject to the following conditions:- (i) Petitioner shall execute bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the likesum to the satisfaction of the Arresting officer; (ii) Petitioner shall appear before the investigating officer in Crime No.926 of 2023 of Infopark Police Station at 11.00 A.M on 12.12.2023 and 13.12.2023 and thereafter, whenever called upon to do so; (iii) The petitioner shall not influence or intimidate the de-facto complainant or spread any news through social media or otherwise regarding the de-facto complainant or any member of the family of the de-facto complainant. - (iv)The petitioner shall not attempt to contact the de- BAIL APPL. NO. 6010 OF 2023 8 facto complainant or interfere with the investigation or to influence or intimidate any witness in Crime No.926 of 2023 of Infopark Police Station; (v) The petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.926 of 2023 of Infopark Police Station, may file an application before the jurisdictional Court, for cancellation of bail. The petitioner shall be deemed to be in custody for the purpose of recovery etc. as held in Sushila Agarwal v. State (NCT of Delhi) and Another [(2020) 5 SCC 1] . Any observation contained in this order is only for the purpose of considering the entitlement of the petitioner for anticipatory bail and shall not be construed as a finding on merits by this Court on any point. Sd/- GOPINATH P. JUDGE DK BAIL APPL. NO. 6010 OF 2023 9 ## **`APPENDIX OF BAIL APPL. 6010/2023`** ``` PETITIONER ANNEXURES ``` |`Annexure A1`|`A TRUE COPY OF THE O.P NO. 1858/2022`| |---|---| ||`FILED BEFORE THE HON'BLE FAMILY`| ||`COURT, ERNAKULAM`| |`Annexure A2`|`A TRUE COPY OF ORDER DATED`| ||`15/10/2022 IN I.A. NO. 4025/2022 IN`| ||`OP NO. 1858/2022 OF THE HON'BLE`| ||`FAMILY COURT, ENRKAULAM`| |`Annexure A3`|`A TRUE COPY OF COMPLAINT FILED IN`| ||`CRIME NO. 607/2022 OF ELAMAKKARA`| ||`POLICE STATION`| |`Annexure A4`|`A TRUE COPY OF ORDER DATED`| ||`17/11/2022 IN CMP. NO. 713/2022 IN`| ||`CRIME NO. 607/2022 OF THE ELAMAKKARA`| ||`POLICE STATION`| |`Annexure A5`|`ORDER DATED ON 15/07/2023 IN CRLMC`| ||`NO. 1181/2023`| |`Annexure A6`|`A TRUE COPY OF THE INTIMATED`| ||`PHOTOGRAPHS BETWEEN THE PETITIONER`| ||`AND THE DE FACTO COMPLAINANT`| |`Annexure A7`|`A TRUE COPY OF THE SOCIAL MEDIA`| ||`POSTS BY THE DE FACTO COMPLAINANT`|