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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 21ST DAY OF AUGUST 2020 / 30TH SRAVANA, 1942** ## **Bail Appl..No.2039 OF 2020** **CRIME NO.42/2020 OF KANNAMALI POLICE STATION , ERNAKULAM DISTRICT.** ## **PETITIONER/2ND ACCUSED:** **JOHN AGED 65 YEARS S/O.ANTONY, RESIDING AT POLASSERY HOUSE, KATTIPARAMBU, KANNAMALY.P.O, ERNAKULAM DISTRICT** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 2 THE STATION HOUSE OFFICER, KANNAMALY POLICE STATION, ERNAKULAM DISTRICT-682008** ## **BY SRI.SANTHOSH PETER, SR.GP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A. NO.2039 OF 2020 2** ## **O R D E R** **Dated this the 21st day of August 2020** .. **This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.** **2. The petitioner is the 2[nd] accused in Crime No. 42 of 2020 of Kannamaly Police Station, Ernakulam District. The above case is registered against the petitioner alleging offences punishable under Sections 498-A, 341 and 307 r/w. Section 34 of the Indian Penal Code (IPC).** **3. The prosecution case is that, The petitioner and other accused attempted to commit murder of the defacto complainant by pulling her into the water tank. Matrimonial cruelty is also alleged against the petitioner and the other accused.** **4. Heard the learned counsel for the petitioner and the learned public prosecutor.** **5. The learned counsel for the petitioner** ## **B.A. NO.2039 OF 2020 3** **submitted that, the 1[st] accused is already released on bail as per Annexure A2 order. The counsel submitted that, the 3[rd] accused is also released on bail under Section 438 Cr.P.C. by the Sessions Court as per Annexure A3 order. The counsel submitted that, no such incident happened. The counsel submitted that, the petitioner is aged 65 years. The counsel submitted that, the petitioner is ready to abide any conditions, if this Court is granting bail to the petitioner.** **6. The learned Public Prosecutor, even though opposed this bail application, submitted that, if this Court is granting bail to the petitioner, stringent conditions may be imposed. The public prosecutor submitted that the main allegation is against the 1[st] accused and the petitioner herein.** **7. The 1[st] accused was arrested and released on bail as per Annexure A2 order. The main allegation is against the 1[st] accused and the petitioner herein. The learned Magistrate while granting bail to the 1[st] accused considered the factual situations in detail** ## **B.A. NO.2039 OF 2020 4** ## **and passed a detailed order. The relevant portion of the said order is extracted hereunder:** _**“I have carefully heard the submissions, and have gone through the available records. I have also gone through the Order in M.C.7 of 2016 supra. A careful reading of the F.I.S would give an impression that the defacto complainant was not in good terms with her in-laws, and she was interested to move out of the matrimonial house with the petitioner, which the in-laws blocked. The F.I.S. is without the body note of the defacto complainant, and prosecution has not produced any medical records to conclude that the defacto complainant sustained any physical injury in the alleged incident. As pointed out by the Counsel, the depth of the water tank in issue is not mentioned in the prosecution records, whereas the length and breadth is mentioned as 1.86 m and 1.13 m respectively, and it is concrete tank. As submitted by the Counsel, if a lady is thrown upside down to a water tank of this nature, her survival without injury is remote. Having regarding to the facts and circumstances, the case advanced by the petitioner cannot be brushed aside. At any rate, investigation is in progress, and truth will prevail. Suffice to say, further incarceration is not warranted for the progress of the investigation at this stage, and admittedly**_ **B.A. NO.2039 OF 2020 5** _**petitioner is without any bad antecedents, and the alleged incident is to be viewed in the backdrop of the matrimonial discord. In these circumstances, the bar under Section 437(1) (i)Cr.P.C is not applicable.”**_ **The petitioner is the father-in-law of the defacto complainant. The alleged incident happened on 16.2.2020. The 1[st] and 3[rd] accused were already released on bail. Considering the entire facts and circumstances of this case, I think, this bail application can be allowed on stringent conditions.** **8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in Re: Contagion of COVID19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench of this Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons.** **9. Moreover, it is a well accepted principle that, the bail is the rule and the jail is the** **B.A. NO.2039 OF 2020 6** **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.** **10. 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 petitioner shall appear before the Investigating Officer** **within ten days from today and shall undergo interrogation;** **2. After interrogation, if the** **Investigating Officer proposes to arrest the petitioner, he shall be released on bail executing a bond for a sum of Rs.50,000/- (Rupees Fifty** **B.A. NO.2039 OF 2020 7** **Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer** **concerned;** **3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner 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 him from disclosing such facts to the Court or to any police officer;** ## **4. The petitioner shall not leave** **India without permission of the Court;** **5. The petitioner shall not commit an offence similar to the offence of which he is accused, or** **B.A. NO.2039 OF 2020 8** **suspected, of the commission of which he is suspected;** **6. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic;** **7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**