JAMALUDHEEN P B v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 19[TH] DAY OF JULY 2024 / 28TH ASHADHA, 1946 ``` ``` BAIL APPL. NO. 5642 OF 2024 ``` ## **`CRIME NO.246/2024 OF BEYPORE POLICE STATION, KOZHIKODE`** ``` PETITIONER/ACCUSED NO.1: ``` ## **`JAMALUDHEEN P B`** ``` AGED 48 YEARS, S/O.BAVA HAJI, SUHARA MANZIL CHALIYAM, KOZHIKODE., PIN - 673001 ``` ``` BY ADVS. SRI.T.SHAJITH SRI.NAJAH EBRAHIM V.P. ``` ## **`RESPONDENTS/STATE:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICE BEYPORE POLICE STATION, KOZHIKODE, PIN - 673001 ``` ## **`BY SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.5642 of 2024 ``` ``` 2 ``` ## **ORDER** ## **Dated this the 19[th] day of July, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the 1[st] accused in Crime No.246/2024 of the Beypore Police Station, Kozhikode, which is registered against the accused for allegedly committing the offences punishable under Sections 354A(1)(i) and 354A(1)(iv) of the Indian Penal Code, 1860 and Section 9(m) read with Section 10 and Section 11(i) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). 3. The essence of the prosecution case is that : on 12.05.2024, at around 20.45 hours, while the victim was watching television in an apartment where ``` B.A.No.5642 of 2024 ``` ``` 3 ``` she was residing along with her family, the accused, including the owner of the apartment, trespassed into the apartment, quarreled with the defacto complainant / mother of the victim, and one among the accused, wearing black glasses, groped the breasts of the victim. Thus, the accused have committed the above offences. 4. Heard; Sri.T.Shajith, the learned counsel appearing for the petitioner and Smt.Seetha S, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. A reading of the Annexure A1 FIR, Annexure A3 complaint, Annexure A2 order passed by the court below and the other materials in the records clearly proves the falsity in the crime. In fact, on 12.05.2024 at the instance of the defacto complainant, two crimes, namely Crime ``` B.A.No.5642 of 2024 ``` ``` 4 ``` Nos.201/2024 and 246/2024 (instant crime) have been registered by the same Police Station, against the petitioner and four other accused, on the very same set of allegations. In Crime No.201/2024, it is alleged that, on 12.05.2024, at around 20.50 hours, the accused trespassed into the apartment of the defacto complainant, and the accused groped the breasts of the victim and also beat her with his hands. On the very same day, Crime No.246/2024 is registered on the allegation that, on the same day, at around 20.45 hours, while the victim was watching television, the accused trespassed into the apartment and quarreled with the defacto complainant and then one among the accused, who was wearing black glasses, groped the breasts of the victim. The Court of Session, Kozhikode, has granted an order of pre-arrest bail to the accused in Crime No.201/2024, as per its order dated 27.05.2024 in Crl.M.C.No.833/2024, ``` B.A.No.5642 of 2024 ``` ``` 5 ``` considering the falsity in the crime. But, in the instant case, the application filed by the petitioner alone was dismissed, on the finding that he was the person who wore the black glasses. The contradictory statements given by the defacto complainant in the two crimes, by itself proves the frivolity in the allegation. The sole intention of the defacto complainant is not to vacate from the petitioner’s apartment. Actually, the accused had found a stranger visiting the defacto complainant in the apartment at odd hours, which was objected to the residents of the apartment complex. It is only to wreck vengeance on the accused, that the two crimes have been registered against them. The petitioner is entitled to the benefit of the order of pre-arrest bail granted to the other accused. The petitioner’s custodial is not and no interrogation necessary recovery is to be effected. Hence, the application may ``` B.A.No.5642 of 2024 ``` ``` 6 ``` be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the two incidents are separate and distinct. In the present case, there are materials to show that the petitioner had committed the above offences. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. He may also intimidate the victim and her witnesses. Hence, the application may be dismissed. 7. In the instant crime, it is alleged that the petitioner had groped the breasts of the victim, on 12.05.2024 at 20:45 hours, while she was watching television. In the same breadth, the defacto complainant has also lodged Crime No.201/2024 alleging that on the same night at around 20:50 hours, the accused 1 to 4 had trespassed into her apartment and outraged the modesty of the victim by ``` B.A.No.5642 of 2024 ``` ``` 7 ``` touching her breasts and also beating her with their hands. The two sets of allegations are selfcontradictory. Whether the allegations are true or false are matters that need to be investigated and ultimately decided at the time of the trial. But, prima facie I found some frivolity and falsity in the accusations, especially because there are disputes between the accused and the defacto complainant regarding permitting strangers in the apartment belonging to the petitioner. 8. The learned Sessions Judge has granted an order of pre-arrest bail to the accused 2 to 5, on the finding that they are not involved in the case. The petitioner has been denied an order on the finding that he was the person who wore the black glasses. I am unable to agree with the same because of lack of materials. ``` B.A.No.5642 of 2024 ``` ``` 8 ``` 9. In **Bhadres Bipinbhai Sheth v. State of 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 pre-arrest 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. 10. 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 defacto complainant had lodged two complaints in respect of the same incident that occurred within a span of five minutes against the accused, by making two different sets of allegations. ``` 9 ``` ## **`B.A.No.5642 of 2024`** Hence, I am prima facie satisfied that there is some frivolity in the allegations. 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, but subject to the condition that the petitioner cooperates 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 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; ``` B.A.No.5642 of 2024 ``` ``` 10 ``` (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 or threat to the victim or her witnesses or procure to any person acquainted with the facts of the case so as to dissuade them 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.5642 of 2024 ``` ``` 11 ``` 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 ``` 12 ``` ## **`B.A.No.5642 of 2024`** 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 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** NAB