Ouseph and Sindhu@Alphonsa v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 24TH DAY OF AUGUST 2020 / 2ND BHADRA, 1942** ## **Bail Appl..No.5089 OF 2020** **CRIME NO.454/2020 OF VAGAMON POLICE STATION , Idukki** ## **PETITIONERS:** |**1**|**OUSEPH**| |---|---| ||**AGED 68 YEARS**| ||**CHERIYAMAVIL HOUSE,**| ||**MULLAKANAM KARA,**| ||**IDUKKI VILLAGE,**| ||**685566**| |**2**|**SINDHU@ALPHONSA**| ||**AGED 44 YEARS**| ||**W/O. DEVASSIA,**| ||**CHERIYAMAVIL HOUSE,**| ||**MULLAKANAM KARA,**| ||**IDUKKI VILLAGE**| ||**686566**| ||**BY ADVS.**| ||**SRI.RENJITH B.MARAR**| ||**SMT.LAKSHMI.N.KAIMAL**| ## **RESPONDENTS:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 5089 OF 2020 2 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------- B.A.No.5089 of 2020 ------------------------------Dated this the 24[th] day of August, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioners are accused in Crime No.454 of 2020 of Vagamon Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 294(b), 324, 326, 354, 354A, 323, 506(ii) r/w Section 34 of the IPC. 3. The prosecution case is that on 27.7.2020 at about 2 p.m., the first accused attacked the defacto complainant with a stick and the second accused who is the wife of the first accused gave him the sticks for attacking the defacto complainant. It is also alleged B.A.No. 5089 OF 2020 3 that during the incident, the dress of the defacto complainant were torn and hence the petitioners outraged her modesty. It is the further case of the prosecution that when the daughter of the complainant interfered, she was slapped on the face as well. The alleged motive of the incident is that the first petitioner had earlier requested for sexual favours from the complainant. 4. Heard the counsel for the petitioners and the learned Public Prosecutor. 5. The counsel for the petitioners submitted that the incident is not happened as alleged by the prosecution. The counsel submitted that the first petitioner is aged 68 years. He married the second petitioner. It was a late marriage. The first petitioner was an ex-service man. The counsel submitted that the son of the defacto complainant behaved in an indecent manner to the second petitioner. There was a wordy quarrel between the petitioners with the B.A.No. 5089 OF 2020 4 defacto complainant and his relatives. The counsel submitted that even if the entire allegations are accepted, the offence under Section 354 IPC is not made out. The counsel submitted that the allegation that the petitioners inflicted grievous hurt to the defacto complainant is not correct. 6. The learned Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that, the defacto complainant sustained a grievous hurt. The Public Prosecutor also submitted that if this Court is granting them bail, stringent conditions may be imposed. 7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. The allegation against the petitioners is that the petitioners used abusive languages and assaulted the defacto complainant. In such situation, whether an offence under Section 354 IPC is made out is a matter to be investigated by the investigating officer. The intention B.A.No. 5089 OF 2020 5 to commit the offences under Section 294(b), 324 and 326 IPC on one hand and the intention to commit the offence under Section 354 are entirely different. The petitioners have got a definite case that the son of the defacto complainant misbehaved towards the second petitioner and there was some wordy quarrel between the parties. I don't want to make any observations about the merit of the case. Considering entire facts and circumstances of the case and considering the age of the first petitioner, also, I think this bail application can be allowed on stringent conditions. There is no serious overt acts attributed to the second petitioner. 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 B.A.No. 5089 OF 2020 6 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 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 petitioners shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating B.A.No. 5089 OF 2020 7 Officer propose to arrest the petitioners, they shall be released on bail 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 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 them from disclosing such facts to the Court or to any police officer. 4. Petitioners shall not leave India without permission of the 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 strictly abide by B.A.No. 5089 OF 2020 8 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 petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** al/-+