Jafar K.C v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946 BAIL APPL. NO. 11405 OF 2023 ``` ``` CRIME NO.1201/2023 OF CHANDERA POLICE STATION, KASARGOD PETITIONER/ACCUSED: ``` ``` JAFAR K.C, AGED 42 YEARS /O.SULAIMAN, RESIDING AT K.C.HOUSE, PADANNA, THEKKEPPURAM, PADANNA VILLAGE AND POST, KASARAGOD DISTRICT, PIN - 671312 ``` ``` BY ADVS. T.MADHU VRINDA T.S. C.R.SARADAMANI AISWARYA JAYAPAL RENJISH S. MENON ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## **`SR.PUBLIC PROSECUTOR SMT. NEEMA T.V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.11405 of 2023 _-:2:-_ Dated this the 31[st] day of July, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.1201/2023 of the Chandera Police Station, Kasargod, which is registered against him for allegedly committing the offences punishable under Sections 450 and 511 of Section 376 of the Indian Penal Code (in short, IPC) 3. The crux of the prosecution case is that: on 11.12.2023, at around 20:15 hours, the accused (brother of the victim’s husband) had trespassed into the house of the victim and attempted to commit rape on her. Thus, the accused has committed the above offences. 4. Heard; Sri. T. Madhu., the learned counsel B.A.No.11405 of 2023 _-:3:-_ appearing for the petitioner, Smt. Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is absolutely innocent in the above crime. The victim has deliberately filed a fabricated case against the petitioner to wreak vengeance on him and his brother, who is the estranged husband of the victim. In fact, there is a matrimonial litigation between the victim and her husband pending before the Judicial First Class Magistrate Court-I, Hosdurg as M.C. No.19/2020. In that case, the petitioner is acting as the power of attorney holder of his brother. On an earlier occasion, the victim had filed a similar frivolous complaint before the same police station against the petitioner and his brother alleging that they have committed the offence under Section 498A of the IPC. At that time, by Annexure A1 order, this Court granted an order of pre- B.A.No.11405 of 2023 _-:4:-_ arrest bail to the petitioner. Subsequent to that, now the victim has filed the present complaint. A reading of the First Information Report would clearly substantiate the frivolity and falsity in the present crime. The petitioner is a law abiding citizen without any criminal antecedents. Since the petitioner is living happily with his family, it is only to tarnish his image and reputation that the present crime is registered. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. B.A.No.11405 of 2023 _-:5:-_ 7. The allegation against the petitioner is that, he trespassed into the house of the victim and attempted to commit rape on her. On an appreciation of the materials placed on record, it is seen that the victim has filed M.C.No.19/2020 before the jurisdictional Magistrate against her husband, for an order of maintenance. In the said case, the petitioner is acting as the power of attorney holder of his brother. It is also seen that on an earlier occasion the victim had lodged a complaint before the very same police station and Crime No.981/2023 was registered against the petitioner and his brother for allegedly committing an offence under Section 498A of the IPC. By Annexure A1 order, this Court has granted an order of pre-arrest bail in favour of the petitioner. It is subsequent to the passing of Annexure A1 order, that the present crime has been registered. 8. In **Bhadres Bipinbhai Sheth v. State of** B.A.No.11405 of 2023 _-:6:-_ **Gujarat and another** [2015 KHC 4579] the Hon'ble Supreme Court has succinctly culled out the principles to grant orders of pre-arrest bail. It is laid down that Courts should be careful and meticulous in evaluating the facts of each case before granting an order of prearrest bail. The court should consider whether arresting of an accused would lead to ignominy, humiliation and disgrace to the accused and their family and also if there is any frivolity in the complaint registered against the accused. 9. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the victim and her husband have an estranged relationship, the petitioner is acting as a power of attorney holder of the victim’s husband and the victim had earlier filed a similar complaint against the petitioner and her husband alleging that they have B.A.No.11405 of 2023 _-:7:-_ committed this offence under Section 498 A of the IPC, and this Court granted an order of pre-arrest bail, I find that there is some frivolity in the present crime, though that is a matter to be investigated and decided at the time of trial. But, I am of the firm view that the petitioner’s custodial interrogation is not necessary. Therefore, I am convinced that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the petitioner is entitled to an order of pre-arrest bail; subject to the condition that the petitioner co-operates with the Investigating Officer. 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 arrest of the petitioner, the B.A.No.11405 of 2023 _-:8:-_ 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; (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 the said court within the said period; ## B.A.No.11405 of 2023 _-:9:-_ (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]. (x) The observations made in this order are only B.A.No.11405 of 2023 _-:10:-_ 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** rmm/31/7/2024