Mary Jose v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 4631 OF 2024` ``` CRIME NO.313/2024 OF ANGAMALI POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` MARY JOSE AGED 67 YEARS WIFE OF JOSE, KOONAN HOUSE, ANANDAPURAM P O, IRINJALAKUDA, THRISSUR, PIN – 680683 ``` ``` BY ADVS.JITHIN BABU A CLETUS THOTTAPILLY ARUN SAMUEL ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4631/2024_ _-:2:-_ _Dated this the 10[th] day of June, 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 second accused in Crime No.313/2024 of the Angamali Police Station, Ernakulam, which is registered against the accused(two in number) for allegedly committing the offence punishable under Section 498A read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The crux of the prosecution allegation is that: the de-facto complainant is the wife of the first accused. The second accused is the mother of the first accused. On 16.01.2023, at around 22.30 hours, the _B.A.No.4631/2024_ _-:3:-_ accused Nos.1 to 4, in furtherance of their common intention had abused the de-facto complainant in obscene language and had physically assaulted her, including tearing her garments. Thus, the accused have committed the above offences. 4. Heard; Sri. Jithin Babu. A, the learned counsel appearing for the petitioner Smt. Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. A reading of Annexure-A1 First Information Report [FIR] would substantiate that there is no specific accusation levelled against the petitioner, so as to attract the offence under Section 498A of the IPC. The petitioner’s custodial is not and no interrogation necessary, recovery is to be effected. Moreover, the petitioner is a lady. Therefore, the petitioner is entitled to an order of _B.A.No.4631/2024_ ## _-:4:-_ pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that the petitioner’s custodial interrogation is necessary and that there are incriminating materials to prove the petitioner’s involvement in the crime. If the petitioner is granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the petitioner and the other accused is that they physically assaulted the de-facto complainant, who is the wife of the first accused and the daughter-in-law of the petitioner. 8. The Hon’ble Supreme Court in **Bhadresh Bipinbhai Sheth vs State of Gujarat and another** [2015 KHC 4579] has succinctly culled out the principles to grant orders of pre-arrest bail in cases involving family disputes. It is apposite to extract the _B.A.No.4631/2024_ _-:5:-_ ## relevant portions of the judgment, which reads thus: “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, 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 _B.A.No.4631/2024_ _-:6:-_ 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 pre - conviction stage or post - conviction stage. (iv) There is no justification for reading into S.438 CrPC the limitations mentioned in S.437 CrPC. The plentitude of S.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 S.438 CrPC 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. _B.A.No.4631/2024_ _-:7:-_ (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 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. _B.A.No.4631/2024_ _-:8:-_ (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 S.438 CrPC 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 _B.A.No.4631/2024_ _-:9:-_ any cognizable offence; (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 S.34 and S.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 _B.A.No.4631/2024_ _-:10:-_ 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 is entitled to an order of bail”. 9. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the law laid down by the Honourable Supreme Court in the aforecited decision and on comprehending the fact that the petitioner’s custodial interrogation is not necessary, that the petitioner is a lady, that the specific overt act is attributed against the first accused and that there are matrimonial disputes between the accused and the de-facto complainant, I am of the thoughtful view that the petitioner has made out exceptional grounds to invoke the discretionary _B.A.No.4631/2024_ _-:11:-_ jurisdiction of this Court under Section 438 of the Code. Hence, I am convinced that the petitioner is entitled to an order of pre-arrest bail. 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; - (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 to the victim or _B.A.No.4631/2024_ _-:12:-_ 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 her passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If she has no passport, she shall file an affidavit to the effect before the said court within the said period; - (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 _B.A.No.4631/2024_ _-:13:-_ 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 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** DST/10.06.24 //True copy// P.A. To Judge