RadhaKrishnan Nair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** ## **Bail Appl..No.7339 OF 2020** **CRIME NO.465/2019 OF ARUVIKKARA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **RADHAKRISHNAN NAIR AGED 42 YEARS CHALACHAL VEEDU , UPANIYOOR, VELLAYANI.P.O PIN : 695020** **BY ADV. SRI.G.SUDHEER** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM - 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.E.C.BINEESH, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 7339 of 2020 2 ## **P.V.KUNHIKRISHNAN, J. ===================== B.A.No. 7339 of 2020** **===================== Dated this the 9[th] day of November, 2020** ## **O R D E R** This Bail Application filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. The petitioner is the accused in Crime No.465/2019 of Aruvikkara Police Station, Thiruvanathapuram District. The above case was registered against the petitioner alleging offence punishable under Section 498A and 306 of the I.P.C. The petitioner was arrested on 27.10.2020 and he is in custody from that date onwards. 3. The prosecution case is that the petitioner mentally and physically harassed the victim in this case. It is alleged that, the petitioner also committed the B.A.No. 7339 of 2020 3 offence under Section 306 of IPC. 4. Heard the counsel for the petitioner and the Public Prosecutor. 5. The learned counsel for the petitioner submitted that, this is a false case foisted against the petitioner. The learned counsel for the petitioner also submitted that, there were several litigations pending between the petitioner and in-laws of her diceased wife. The learned counsel submitted that, there is a child in the relationship between the petitioner and his diceased wife. The child is with the in-laws. The petitioner filed a petition before the family court, for getting custody of the child. At that stage, a false case was foisted against the petitioner alleging offence under the POCSO Act. This Court considered the contentions of the petitioner and allowed the bail application as per order dated 25/09/2020 in B.A. No. 5893/2020. Even at that time, the prosecution has no case that the petitioner committed the offence under Section 498A and 306 of IPC. The learned counsel submitted that, after the petitioner B.A.No. 7339 of 2020 4 obtained anticipatory bail as per Annexure-8 order, the petitioner was arrested by the police on 27.10.2020 with an allegation that the petitioner committed the offence under Section 498A and 306 of IPC. The learned counsel submitted that, the petitioner is ready to abide any conditions if this Court grant him bail. 6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor submitted that, the allegation against the petitioner is that, the petitioner harassed the deceased in this case alleging that she has got some relationship with another person. The learned Public Prosecutor also submitted that, there was demand for dowry. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. Whether the offence under Section 306 of IPC is made out or not, is a matter to be investigated by the Investigating Officer. This Court granted bail to the petitioner as per Annexure-8 order in which the offences alleged are under the POCSO Act. This Court allowed the B.A.No. 7339 of 2020 5 petitioner considering the entire facts and circumstances of the case the relevant paragraph of the order dated 25/09/2020 in B.A. No. 5893/2020 is extracted hereunder; “7. After hearing both sides, I think this bail application can be allowed on stringent conditions. The allegation against the petitioner is that, in 2018, the petitioner committed sexual offences to his own daughter. The wife of the petitioner died. Now, admittedly the child is with the in-laws. A custody application is pending before the Family Court from 2019 onwards. The present FIR is registered based on the statement of the minor girl on 23.06.2020. I don't want to make any observation about the merit of the case”. 8. When the above bail application came up for consideration, there was no submission from the prosecution side that, the presence of the petitioner is necessary in this case. This case is registered in 2019. I don't want to make any observation about the merit of the case. The petitioner was in custody from 27/10/2020 onwards. Considering the entire facts and circumstances of this case and considering the period of detention of the petitioner, I think, this bail application can be allowed B.A.No. 7339 of 2020 6 on stringent conditions. 9. 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 COVID-19 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. 10. 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. 11. Considering the dictum laid down in the above decision and considering the facts and circumstances of B.A.No. 7339 of 2020 7 this case, this Bail Application is allowed with the following directions: _1. The petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court;_ _2. 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;_ _3. The petitioner shall not leave India without permission of the jurisdictional Court;_ _4. The petitioner shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of_ B.A.No. 7339 of 2020 8 _which they are suspected;_ _5. 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;_ 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, JUDGE** LU