Jacklin v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942 Bail Appl..No.4952 OF 2020** **CRIME NO.320/2019 OF Valappad Police Station , Thrissur** ## **PETITIONER:** **JACKLIN AGED 34 YEARS S/O K. P. JOHNSON,KIDANGAN HOUSE, MUNDUR VILLAGE, ANJUR DESOM, ANJUR P.O, TALAPPILLY TALUK, THRISSUR DISTRICT, PIN-680541** **BY ADV. SRI.RAJIT** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN-682031** **SRI.RENJITH.T.R, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.4952 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.4952 of 2020 ------------------------------Dated this the 12[th ] day of August, 2020 ## **O R D E R** This Bail Application is filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the sole accused in Crime No.320 of 2019 of Valappad Police Station, Thrissur District. The above case is registered against the petitioner alleging offences punishable under Sections 354D and 506 IPC and Section 120 of KP Act. The offences u/s.67 and 67A of Information Technology Act is also alleged against the petitioner. 3.The prosecution case is that from 2018 onwards the petitioner was sending obscene messages to the de facto complainant through social media and he had created a fake account in the name of the de facto complainant and sent obscene messages to the relative and friends of the de facto complainant and also posted obscene photos and thus caused mental agony to the de facto complainant. B.A.No.4952 of 2020 3 4. Heard the counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that the allegations against the petitioner are not correct. The counsel submitted that there was a relationship between the petitioner and the de facto complainant. They were chatting through whatsapp. At one stage when the information about the same was received by her husband, the present complaint is filed. The petitioner submitted that he has not committed any offence. He also submitted that the offences alleged against the petitioner are bailable except Section 67A of the Information Technology Act. The counsel submitted that as per Section 67A of the Information Technology Act, the maximum punishment that can be imposed is five years. 6.The learned Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioner is involved in Crime No.333 of 2019 also in which the allegation is that the petitioner forwarded obscene videos to the daughter B.A.No.4952 of 2020 4 of the de facto complainant. The Public Prosecutor submitted that this Court may not invoke the powers u/s.438 Cr.P.C in this case. 7. The petitioner earlier filed a bail application before this Court as B.A.No.4568 of 2020. In that bail application the petitioner produced certain chat history between the petitioner and the de facto complainant. This Court observed that such documents should not be part of the record of the bail application. That will only create further problems in another family. Therefore, an order was passed by this Court on 5.8.2020 by which the petitioner was allowed to withdraw the bail application and allowed to take back the documents. The order dated 5.8.2020 is extracted hereunder: “The counsel for the petitioner submitted that some of the documents produced by the petitioner ought not have been produced in the bail applications. He wants to withdraw these bail applications along with the documents produced in these bail applications. Therefore, these bail applications are allowed to withdraw with liberty to file it again. The Registry will return the documents produced by the petitioner in these bail applications. Therefore, these bail applications are dismissed as withdrawn with liberty to file it again.” ## 8. Now this is the second bail application filed by the B.A.No.4952 of 2020 5 petitioner without those documents which is produced in the earlier bail application. Admittedly, the only non bailable offence in this case is Section 67A of the Information Technology Act. The maximum punishment that can be imposed as per that Section is five years. The petitioner has got a case that he was having an illicit relationship with the de facto complainant and when the same became public this false case is registered. I do not want to make any observation about the same. It is not proper also to make such observations in a bail order. 9. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. 10. 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 B.A.No.4952 of 2020 6 directions for minimizing the number of inmates inside prisons. 11. 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. 12. 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 propose to arrest the petitioner, he shall be released on bail executing a bond for B.A.No.4952 of 2020 7 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 of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 4. The petitioner shall surrender his passport before the Investigating Officer. 5. Petitioner shall not leave India without permission of the jurisdictional Court. 6. Petitioner shall not commit an offence similar to the offence of which he is accused, B.A.No.4952 of 2020 8 or suspected, of the commission of which he is suspected. 7. 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. 8. The petitioner shall appear before the Investigating Officer on all Mondays and Fridays at 10 a.m till final report is filed. 9. 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. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** cms