Moidu and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946** **BAIL APPL. NO. 5104 OF 2024** **CRIME NO.202/2024 OF Vellamunda Police Station, Wayanad AGAINST THE ORDER/JUDGMENT DATED IN CRMC NO.430 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - I, KALPETTA PETITIONER/S:** - **1 MOIDU, AGED 55 YEARS, S/O. ABDULLA, VYSYAN(H), KOKKADAVU, WAYANAD, PIN - 670645** - **2 EBRAYI @BHAI, AGED 52 YEARS, S/O. MAMOOTTY, EDAPPARA (H), THARUVANA. P. O, WAYANAD, PIN - 670645** - **3 EBRAYI EDAPPARA, AGED 56 YEARS, S/O. ABDULLA, EDAPPURA (H), THARUVANA P. O, WAYANAD, PIN - 670645** - **4 EBRAYI THOLAN,AGED 60 YEARS S/O. ABDULLA, THARUVANA P.O, WAYANAD, PIN - 670645** **BY ADVS. T.D.SUSMITH KUMAR T.O.DEEPA GAYATHRI C.H. JAYKAR.K.S. C.SIVADAS** ## **RESPONDENT/S:** - **1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 STATION HOUSE OFFICER VELLAMUNDA POLICE STATION, WAYANAD, PIN - 670731** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **22.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.S.DIAS,J** ## **-------------------------------------------Bail Application No.5104 of 2024 --------------------------------------------Dated this the 22[nd] day of July, 2024** ## **ORDER** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 4 in Crime No.202/2024 of the Vellamunda Police Station, Wayanad, which is registered against them, for allegedly committing the offences punishable under Sections 341, 294(b), 354(B), 324 and 506 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). 3. The concise case of the prosecution is that: on 01.05.2024, at around 20.45 hours, the accused 1 to 4, in furtherance of their common intention and out of their previous animosity towards the defacto complainant, wrongfully restrained the defacto complainant's husband and abused him in obscene language, and the 1[st] accused tore the purdah worn by the defacto complainant and assaulted the defacto complainant and her husband and BAIL APPL. NO. 5104 OF 2024 3 outraged the modesty of the defacto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri.Susmith Kumar T.D., the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. In fact, the petitioners are the relatives of the first husband of the defacto complainant, who died abroad. They were maintaining a very cordial relationship. When the defacto complainant received compensation from the employer of the former husband, the defacto complainant's present husband got acquainted with her for the purpose of misappropriating the compensation. When the petitioners attempted to advise the defacto complainant and gave a complaint to the mahal committee, the defacto complainant turned inimical towards them, and at the instigation of her present husband, the present frivolous complaint is filed. The petitioners have not pulled the parda of the defacto BAIL APPL. NO. 5104 OF 2024 4 complainant as alleged by the prosecution. The petitioners are law abiding citizens without any criminal antecedents. The petitioners' 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 there are incriminating materials to substantiate the petitioners' involvement in the crime. If the petitioners are granted an order of prearrest bail, it may hamper the investigation of the case. Hence, the application may be dismissed. 7. The allegation against the petitioners is that, they in furtherance of their common intention had wrongfully restrained the defacto complainant and her present husband and abused them in obscene language and the 1[st] accused tore the purdah of the defacto complainant and outraged her modesty. On a meticulous scrutiny of the materials on record, it can be seen that the petitioners and the defacto complainant are relatives through the former husband of the defacto complainant. It is seen that BAIL APPL. NO. 5104 OF 2024 5 the defacto complainant's husband had died abroad and she received compensation from the employer of her former husband. The petitioners fearing that the defacto complainant's present husband may misappropriate the compensation, lodged a complaint before the Mahal Committee which is pending consideration. It is during this period that the present FIR has been registered against the petitioners. 8. The Honourable Supreme Court in **Bhadresh Bipinbhal Sheth vs. State of Gujarat and another** [2015 KHC 4579] has succinctly culled out the principles to grant orders of pre-arrest bail especially in matters where family disputes are involved. It is observed that the courts should carefully evaluate whether there is any falsity or frivolity in the complaint lodged against the family members especially for the purpose of getting them arrested. In such cases, there is no requirement that the accused must make out a special case for the exercise of the power to grant an order of pre-arrsest bail which would virtually reduce the salutary power conferred BAIL APPL. NO. 5104 OF 2024 6 under Section 438 of the Code of Criminal Procedure. 9. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly considering the fact that there are difference of opinion between the defacto complainant and the petitioners in connection with the utilisation of the compensation received by the defacto complainant in connection with the death of her first husband, the bald allegation that the 1[st] accused tore the purdah of the defacto complainant and outraged her modesty, which is only non-bailable offence alleged against the petitioners though that is matter to be investigated and decided at the time of trial, I am of the firm view that the petitioners' custodial interrogation is not necessary. Hence, I hold that the petitioners are entitled to an order of pre-arrest bail, subject to the condition that they co-operate with the Investigating Officer. Hence, I am inclined to allow the application. In the result, the application is allowed subject to the following conditions: BAIL APPL. NO. 5104 OF 2024 7 - (i) The petitioners are directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioners' arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release BAIL APPL. NO. 5104 OF 2024 8 on bail. If they have no passport, they shall file affidavits to the effect before said court within the said period; - (vi) The petitioners 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 petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila** ## **Aggarwal v. State (NCT of Delhi) And another** BAIL APPL. NO. 5104 OF 2024 9 [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/- rkc/22.07.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 5104 OF 2024 10 ## **APPENDIX OF BAIL APPL. 5104/2024** ## **PETITIONER ANNEXURES** **Annexure A-1** **A TRUE COPY OF THE FIRST INFORMATION STATEMENT ("FIS") DATED 12/05/2024** - **Annexure A-2 A TRUE COPY OF THE FIRST INFORMATION REPORT ("FIR") DATED 12/05/2024** - **Annexure A-3 A TRUE COPY OF THE FIS DATED 13/05/2024 PERTAINING TO THE CRIME NO.204 OF VELLAMUNDA POLICE STATION** - **Annexure A-4 A TRUE COPY OF THE FIR DATED 13/05/2024 PERTAINING TO THE CRIME NO.204 OF VELLAMUNDA POLICE STATION** - **Annexure A-5 A LETTER DATED 12/04/2024 BY THE RELATIVES OF THE FORMER HUSBAND TO THE MAHAL COMMITTEE** - **Annexure A-6 A TRUE COPY OF THE ORDER DATED 11/06/2024 IN CRIMINAL MISCELLANEOUS CASE NO. 430 OF 2024 ON THE FILE OF THE COURT OF SESSION, KALPETTA, WAYANAD**