Khader Pillla @ Sali v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 BAIL APPL. NO. 8543 OF 2023 ``` ## **`CRIME NO.1065/2023 OF PERUMBAVOOR POLICE STATION, ERNAKULAM`** ## **`PETITIONER/ACCUSED:`** ``` KHADER PILLA @ SALI, AGED 50 YEARS, S/O. ABU BECKER, NATHEKATTU HOUSE, CHELAKULAM, VENGOLA P.O., ENRAKULAM DISTRICT, PIN – 686 673. ``` ``` BY ADV AKHIL ALPHONSE G. ``` ## **`RESPONDENT/COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., COCHIN, PIN – 682 031. ``` ``` 2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` BY ADVS AJEESH M UMMER (FOR R2) VIPIN NARAYAN (SR ) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.8543/2023 2 ## **ORDER** This is an application for anticipatory bail. 2. Petitioner is the accused in Crime No.1065/2023 of Perumbavoor Police Station, Ernakulam district, alleging commission of offence under Section 376 of the Indian Penal Code. 3. The allegation against the petitioner is that on 31-07-2023, the petitioner committed rape on the defacto complainant, who is none other than the wife of a close friend of the petitioner. 4. The learned counsel for the petitioner would submit that the family of the petitioner and the family of defacto complainant were having close relationship. It is submitted that the petitioner was on very friendly terms with the defacto complainant, especially after both of them attended a marriage function of one Khadeeja Nisham, a cousin of the wife of the petitioner. It is submitted that there were financial transactions between the petitioner and the alleged defacto complainant and a false case has been B.A.No.8543/2023 3 registered against the petitioner on account of a falling apart in the relationship on account of financial transactions. It is submitted that even after the date of the alleged incident, the defacto complainant has telephoned the petitioner several times, as is evident from Annexure-A7. It is submitted that there are no criminal antecedents reported against the petitioner and the petitioner is not a flight risk. It is submitted that the petitioner will fully co-operate with the investigation and therefore the petitioner may be granted anticipatory bail subject to conditions. 5. The learned Senior Public Prosecutor and the learned counsel appearing for the defacto complainant would vehemently oppose the grant of bail. They would submit that while it is the admitted case of the defacto complainant also that the family of the defacto complainant and the family of the petitioner were having a very good relationship, it is the complaint of the defacto complainant that misusing the friendship and taking advantage of the same the petitioner committed rape on the defacto complainant on 31-07-2023. It is submitted that the defacto B.A.No.8543/2023 4 complainant was in a state of shock after the said incident and it is therefore that the complaint was given only on 1308-2023. It is submitted that the delay in filing the complaint cannot be treated as fatal in the peculiar facts and circumstances of the case, including the fact that the family of the petitioner and the family of the defacto complainant were maintaining a very close relationship. It is submitted that the defacto complainant has suffered serious mental trauma on account of the offence committed by the petitioner. It is submitted that considering the nature of the allegations against the petitioner, he is clearly not entitled to anticipatory bail. To a pointed query from the Court, the learned Senior Public Prosecutor has stated that no criminal antecedents are reported against the petitioner and that the petitioner is a business man having various business establishments in and around Perumbavoor. The learned Senior Public Prosecutor and the learned counsel for the defacto complainant would submit that the attempt by the petitioner to portray the relationship between the petitioner and the defacto complainant in a different manner referring to certain photographs is clearly reprehensible and it cannot B.A.No.8543/2023 5 be taken into account at all. It is submitted that the photographs only suggest that the petitioner and the family of the defacto complainant are maintaining a close relationship and this fact is already admitted in the First Information Statement. 6. Having heard the learned counsel for the petitioner, the learned Senior Public Prosecutor and the learned counsel for the defacto complainant, I am of the view that the petitioner can be granted anticipatory bail. This is not on account of the fact that the allegations against the petitioner are not serious. The allegations against the petitioner are quite serious and according to the defacto complainant, he had taken advantage of the fact that the family of the petitioner and the family of the defacto complainant having a close relationship and had committed rape on her on 31-07-2023. The Supreme Court in ## **Bhadresh Bipinbhai Sheth v. State of Gujarat and another; (2016) 1 SCC 152** , held as follows: “19. Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench Judgment of this Court in the case of Gurbaksh B.A.No.8543/2023 6 Singh Sibbia and Others v. State of Punjab((1980) 2 SCC 565). The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section46 of the Code. The essence of this provision is brought out in the following manner: “26. We find a great deal of substance in Mr Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law B.A.No.8543/2023 7 for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the Legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.” xxx xxx xxx 21. It is pertinent to note that while interpreting the expression “may, if it thinks fit”occurring in Section 438(1) of the Code, the Court pointed out that it gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case”. The Court also remarked that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. **==> picture [235 x 7] intentionally omitted <==** 23. The principles which can be culled out, for the purposes of the instant case, can be stated as under: (i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the Investigating Officer is established then action be taken against the investigating officer in accordance with law. (ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, B.A.No.8543/2023 8 the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. (iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a preconviction stage or post-conviction stage. (iv) There is no justification for reading into Section 438 Cr. P.C. the limitations mentioned in Section 437 Cr. P.C. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case”for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 Cr. P.C. to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail. (v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court B.A.No.8543/2023 9 for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case. (vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time. (vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail. (viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 Cr.P.C. should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the Legislature to a rigorous code of self-imposed limitations. (ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. (x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail: (a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; B.A.No.8543/2023 10 (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused's likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in (sic) entitled to an order of bail.” Therefore considering the principles laid down in **Bhadresh Bipinbhai Sheth (supra)** , I am of the view that the petitioner can be granted anticipatory bail subject to strict conditions. No criminal antecedents are reported against B.A.No.8543/2023 11 the petitioner and the petitioner is not a flight risk as the petitioner is stated to having several business establishments in and around Perumbavoor. For the purposes of investigation, the petitioner will be deemed to be in limited custody as held in **Sushila Agarwal v. State** ## **(NCT of Delhi) and Another; (2020) 5 SCC 1.** In the result, this application is allowed. It is directed that the petitioner shall be released on bail, in the event of arrest in Crime No.1065/2023 of Perumbavoor Police Station, Ernakulam district 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 like sum to the satisfaction of the arresting officer; (ii) Petitioner shall appear before the investigating officer in Crime No.1065/2023 of Perumbavoor Police Station, Ernakulam district at 11.00 a.m on 26-10-2023, 27-10-2023 and on 28-10-2023 and thereafter whenever called upon to do so; B.A.No.8543/2023 12 (iii) Petitioner shall not attempt to contact the de facto complainant or interfere with the investigation or to influence or intimidate any witness in Crime No.1065/2023 of Perumbavoor Police Station, Ernakulam district; (iv) The petitioner shall surrender his passport before the jurisdictional Court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the jurisdictional court within seven days of release on bail; (v) The petitioner shall not use any social media platform for the purposes of causing any prejudice to the defacto complainant and her family; (vi) 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.1065/2023 of Perumbavoor Police Station, Ernakulam district, may file an application before the jurisdictional Court for cancellation of bail. **Sd/GOPINATH P. JUDGE** ats