High Court of KeralaSingle Judge2020-11-19Bail Application allowed with stringent conditi...

Rasheed, Biyya and Arshina v. State of Kerala and Station House Officer, Nadapuram Police Station

Case / Petition Number:B.A.No. 7528 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-11-19
Court Decision / Holding: Bail Application allowed with stringent conditions.
Final Disposition: Bail Application allowed with stringent conditions.

Parties to the Case

Appellants / Petitioners

Rasheed
Biyya
Arshina

Respondents

State of Kerala
Station House Officer, Nadapuram Police Station, Nadapuram-PO, Kozhikode

Legal Representation & Advocates

Counsels for Petitioners

• Shri P. Venugopal

Counsels for Respondents

• Public Prosecutor, High Court of Kerala
• Sri Jayasurya B., Sr. P.P.

Case Synopsis & Summary

This is a Kerala High Court bail application under Section 438 CrPC filed on behalf of three petitioners—Rasheed, Biyya, and Arshina—in Crime No. 715/2020 of Nadapuram Police Station, Kozhikode, alleging offences under Sections 498A and 406 read with Section 34 IPC. The prosecution alleges matrimonial cruelty and related acts following the first petitioner’s marriage to the defacto complainant on 31.10.2016; a restitution of conjugal rights petition is pending, and the matrimonial relationship between the first petitioner and the complainant is said to continue. Counsel for the petitioners submitted that the offences are matrimonial in nature, and that the allegations are not fully correct; the petitioners are ready to abide by any conditions if bail is granted. The Public Prosecutor opposed bail but suggested stringent conditions if bail is granted. The court, after hearing, observed that though there are allegations of cruelty, it would not express a view on merits. It invoked the principle that bail is the rule and jail is the exception, citing Chidambaram P. v. Directorate of Enforcement (2019 SCALE 870). It also referred to COVID-19 related directions on minimizing prison populations (Re: Contagion of COVID19 Virus In Prisons) and a Full Bench directive (W.P(C) No. 9400/2020). Consequently, bail was granted with stringent conditions: the petitioners must appear for interrogation within ten days; furnish bonds of Rs.50,000 with two solvent sureties each; not leave India; abide by anti-tampering and witness-protection norms; comply with social distancing guidelines; violation allows cancellation of bail.

Provisions of Law Cited

Section 438 of CrPCSections 498A & 406 r/w Section 34 IPC

Legal Doctrines & Maxims

Bail is the rule and jail is the exception.
Grant of bail is the rule and refusal is the exception so as to ensure the accused has the opportunity of securing a fair trial.
Social distancing norms in prisons to avert spread of COVID-19—relevant directives relied upon for minimizing prison population.

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioners submitted that the offences alleged are matrimonial in nature and the couple remain in a relationship, with a restitution of conjugal rights petition pending. They contended that the allegations of cruelty should not bar bail and that the petitioners are prepared to comply with any conditions. Recognizing the COVID-19 context, they argued for bail with strict safeguards rather than continued detention, emphasizing that the basic principle in criminal jurisprudence is to grant bail as a rule when possible to preserve the right to fair trial. They urged the court to adopt conditions that ensure cooperation with the investigation, prevent tampering, and protect victims and witnesses, while allowing the accused to participate in forthcoming proceedings.

Contentions of Respondents

The Public Prosecutor opposed bail in principal due to serious allegations under Sections 498A and 406 IPC read with Section 34, noting potential harm to the defacto complainant and the possibility of tampering with witnesses. He suggested that if bail were granted, it should be with stringent conditions to safeguard the investigation, ensure attendance, and prevent the repetition of alleged offences. He also emphasized adherence to COVID-19 safety norms in prison and the need to balance the rights of the accused with public interest and the protection of the complainant.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)	Suo Motu Writ Petition(C) No.1 of 2020	Positive	Court relied on directions in this case to minimize prison populations and enforce social distancing in prisons.
Chidambaram. P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Cited to reaffirm bail principle that bail is the rule and refusal is the exception to ensure fair trial.
W.P(C) No.9400 of 2020	W.P(C) No.9400 of 2020	Mentioned Only	Full Bench directions cited in the context of COVID-19 prison guidelines; not a central legal principle for the bail order.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** |**THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942**|**THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942**| |---|---| ||**Bail Appl..No.7528 OF 2020**| |**CRIME NO.715/2020 OF Nadapuram Police Station , Kozhikode**|| |**PETITIONERS/ACCUSED**<br>**:**|| |**1**|**RASHEED**| ||**AGED 33 YEARS**| ||**SON OF KUNHABDULLA, EDAVATH KANDIYIL HOUSE,**| ||**EYYAMKODE-PO, NADAPURAM, VATAKARA TALUK, KOZHIKODE**| ||**DISTRICT**| ||**673504**| |**2**|**BIYYA**| ||**AGED 48 YEARS**| ||**W/O KUNHABDULLA, EDAVATH KANDIYIL HOUSE, EYYAMKODE-**| ||**PO, NADAPURAM, VATAKARA TALUK, KOZHIKODE DISTRICT**| ||**673504**| |**3**|**ARSHINA**| ||**AGED 23 YEARS**| ||**W/O RAYEES, EDAVATH KANDIYIL HOUSE, EYYAMKODE-PO,**| ||**NADAPURAM, VATAKARA TALUK, KOZHIKODE DISTRICT**| ||**673504**| ||**BY ADV. SHRI.P.VENUGOPAL**| |**RESPONDENTS**<br>**:**|| |**1**|**STATE OF KERALA**| ||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA**| ||**682031**| |**2**|**STATION HOUSE OFFICER**| ||**NADAPURAM POLICE STATION, NADAPURAM-PO, KOZHIKODE**| ||**RURAL DISTRICT**| ||**673504**| B.A.No. 7528 OF 2020 2 ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.JAYASURYA.B, SR.PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 7528 OF 2020 3 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- B.A.No.7528 of 2020 ------------------------------Dated this the 19[th] day of November, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioners are accused in Crime No.715/2020 of Nadapuram Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 498A & 406 r/w Section 34 of the IPC. 3. The prosecution case is that the first petitioner married the defacto complainant on 31.10.2016. It is the further case of the prosecution that the petitioners mentally and physically harassed the B.A.No. 7528 OF 2020 4 defacto complainant. 4. Heard the counsel for the petitioners and the learned Public Prosecutor. 5. The counsel for the petitioners submitted that the offences alleged against the petitioners are matrimonial offences. A petition for restitution of conjugal right is pending before the lower court. The matrimonial relationship between the first petitioner and the defacto complainant is even now in existence. The counsel submitted that the allegation against the petitioners are not correct. The counsel submitted that the petitioners are ready to abide any conditions if this Court grant them bail. 6. The Public Prosecutor opposed the bail application but the Public Prosecutor submitted that if this Court is granting bail, stringent conditions may be imposed. 7. After hearing both sides, I think, this bail B.A.No. 7528 OF 2020 5 application can be allowed on stringent conditions. Admittedly, the marital relationship between the first petitioner and the defacto complainant is in existence even now. The allegation against the petitioners is that there is matrimonial cruelty. I don't want to make any observation on the merit of the case. Considering the entire facts and circumstances and 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 B.A.No. 7528 OF 2020 6 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 Officer propose to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs,.50,000/-(Rupees B.A.No. 7528 OF 2020 7 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 the various guidelines issued by the State Government and Central Government B.A.No. 7528 OF 2020 8 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. ## **P.V.KUNHIKRISHNAN, JUDGE** al/-