Lincy Jain and Jain Sebastian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 4[TH] DAY OF MAY 2022 / 14TH VAISAKHA, 1944 BAIL APPL. NO. 3389 OF 2022** **CRIME NO.391/2022 OF ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM** ## **PETITIONERS/ 3RD AND 4TH ACCUSED:** 1 LINCY JAIN AGED 38 YEARS W/O. JAIN, MENACHERI HOUSE, THOTTAKATTUKARA P.O, ALUVA., PIN - 683108 2 JAIN SEBASTIAN AGED 51 YEARS S/O.SEBASTIAN, MENACHERI HOUSE, THOTTAKATTUKARA, ALUVA., PIN - 683108 BY ADVS. SABU THOZHUPPADAN V.K.KISHOR ANTONY VARGHESE DEVI P. PRATHAPAN ANOOJ K SUDHARMAN STIYA SIVAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, CENTRAL POLICE STATION, ERNAKULAM REPRESENTED THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 BY ADV.SRI.VIPIN NARAYANAN, SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 3389 OF 2022 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------B.A.No.3389 of 2022 ------------------------------Dated this the 4[th] day of May, 2022 ## **O R D E R** This Bail Application is filed under Section 438 of Criminal Procedure Code. 2. Petitioners are the accused Nos. 3 and 4 in Crime No.391 of 2022 of Central Police Station, Ernakulam. The above case is registered against the petitioners and others alleging offences punishable under Sections 341, 323, 324, 308 and 506 of the IPC. 3. The prosecution case is that the petitioners and the other accused wrongfully restrained the defacto complainant and assaulted him. It is also alleged that the petitioners committed offence under Section 308 IPC. BAIL APPL. NO. 3389 OF 2022 **==> picture [7 x 10] intentionally omitted <==** 4. Heard counsel for the petitioners and the Public Prosecutor. The counsel for the petitioners submitted that the petitioners are only A3 and A4. The counsel submitted that the petitioners were admittedly not present at the time of the incident. The counsel submitted that no serious injuries are sustained to the defacto complainant. The counsel also submitted that the petitioners are ready to abide any conditions, if this Court grant them bail. The learned Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioners are involved in a series of cases in connection with the above incident. The Public Prosecutor submitted that the petitioners may not be released on bail under Section 438 Cr.P.C. It is true that the allegations against the petitioners are very serious. But after going through the BAIL APPL. NO. 3389 OF 2022 **==> picture [7 x 8] intentionally omitted <==** facts and circumstances of the cases, it is clear that the custodial interrogation of the petitioners may not be necessary. The petitioners can be directed to appear before the investigating officer and there can be a direction to the investigating officer to interrogate the petitioners, if needed. 5. 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. 6. Recently the Apex Court in **Siddharth v State of Uttar Pradesh and Another (2021(5)KHC 353)** considered the point in detail. The relevant paragraph of the above judgment is BAIL APPL. NO. 3389 OF 2022 5 ## extracted hereunder. “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.” ## 7. 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 petitioners shall appear before the Investigating Officer within two weeks from today and BAIL APPL. NO. 3389 OF 2022 6 shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail on executing a bond for a sum of Rs.50,000/(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned. 3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners 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 BAIL APPL. NO. 3389 OF 2022 **==> picture [7 x 8] intentionally omitted <==** him from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the jurisdictional Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 6. The petitioners shall appear before the Investigating Officer on all Saturdays at 10 a.m. till final report is filed. 7. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted BAIL APPL. NO. 3389 OF 2022 **==> picture [7 x 10] intentionally omitted <==** by this Court. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** DM BAIL APPL. NO. 3389 OF 2022 9 ## **APPENDIX OF BAIL APPL. 3389/2022** |PETITIONER|ANNEXURES| |---|---| |ANNEXURE1|TRUE COPY OF FIR IN CRIME| ||NO.2108/2021 OF ALUVA EAST POLICE| ||STATION.| |ANNEXURE2|TRUE COPY OF SECTION ALTERATION| ||REPORT FILED BY S.I. OF POLICE,| ||ALUVA EAST POLICE STATION IN CRIME| ||NO.2108/2021 OF ALUVA EAST POLICE| ||STATION BEFORE JUDICIAL FIRST CLASS| ||MAGISTRATE COURT- I, ALUVA| |ANNEXURE3|TRUE COPY OF COMPLAINT DATED| ||7/12/2021<br>SUBMITTED<br>BY<br>1ST| ||PETITIONER TO DISTRICT POLICE| ||CHIEF, ERNAKULAM (RURAL), ALUVA| |ANNEXURE4|TRUE COPY OF UNDERTAKING DATED| ||14/12/2020 SIGNED BY MISSAN MOHANAN| |ANNEXURE5|TRUE COPY OF ACKNOWLEDGEMENT OF| ||RECEIPT<br>OF<br>PETITION<br>DATED| ||11/02/2022 ON RECEIPT OF PETITION| ||NO.27178/2022 ISSUED BY CYBER CRIME| ||POLICE STATION, ERNAKULAM (RURAL)| ||TO 1ST PETITIONER| |ANNEXURE6|TRUE COPY OF ACKNOWLEDGEMENT OF| ||RECEIPT<br>OF<br>PETITION<br>DATED| ||19/03/2022 ON RECEIPT OF PETITION| ||NO.20759/2022/EC ISSUED BY CITY| ||POLICE OFFICE, KOCHI TO 1ST| ||PETITIONER| |ANNEXURE7|SCREENSHOT OF WHATSAPP MESSENGER| ||SENT FROM MOBILE PHONE OF ADV.SAJAN| ||MICHEL (COUNSEL FOR DEFACTO-| ||COMPLAINANT)<br>TO<br>ADV.<br>SABU| ||THOZHUPPADAN.K<br>(COUNSEL<br>FOR| ||PETITIONER) ON 21/03/2022 AND| BAIL APPL. NO. 3389 OF 2022 10 22/03/2022 ANNEXURE8 CERTIFIED COPY OF ORDER DATED 25/04/2022 IN CRL.M.C.NO.731/2022 OF SESSIONS COURT (VACATION), ERNAKULAM //TRUE COPY// PA TO JUDGE