Rejimon and Zeenath v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 3[RD] DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943 BAIL APPL. NO. 6060 OF 2021** **CRMC 1497/2021 OF SESSIONS COURT, ERNAKULAM, CRIME NO.1293/2021 OF PALLURUTHY KASABA POLICE STATION** ## **PETITIONERS/ACCUSED 1 AND 2** 1 REJIMON, AGED 28 YEARS S/O. RAHMATHULLA, ALIPARAMBIL HOUSE, ARPANA ROAD, PALLURUTHY, KOCHI. 2 ZEENATH, AGED 58 YEARS W/O. RAHMATHULLA, ALIPARAMBIL HOUSE, ARPANA ROAD, PALLURUTHY, KOCHI. BY ADV BIMAL PRASAD ## **RESPONDENT/STATE** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. PP SEETHA S **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **B.A.6060/21** **-2-** ## **ORDER** 1. Petitioners are the accused in Crime No.1293/2021 of Palluruthy Kasaba police station. The 1[st] petitioner is the husband of the de facto complainant and the 2[nd] petitioner is the mother of the 1[st] petitioner. The marriage between the de facto complainant and the 1[st] petitioner was solemnized on 31.03.2019 and thereafter they have been residing together at the matrimonial home. It is alleged that while residing together, she has been subjected to physical and mental torture by demanding money and gold ornaments and thereby the crime has been registered for the offence aforementioned. 2. The learned counsel for the petitioner would contend that they lived together only for a short period after the marriage. In October 2019 itself, she left the matrimonial home and thereafter he filed the complaint as Annexure-3. He also produced Annexure-4 copy of the alleged receipt issued by the father of the de facto complainant admitting that the gold ornaments given as gift to the de facto complainant have been returned. 3. The learned Public Prosecutor on instructions submitted that the father of the de facto complainant has given **B.A.6060/21** **-3-** different version regarding the report issued for return of gold ornaments. In the complaint also de facto complainant stated about a subsequent compromise and reunion and they started living together at the matrimonial home and at that time she again entrusted the gold ornaments with the first accused. 4. Annexure-A5 is the copy of the order in Crl.M.C.1497/2021 by which the Sessions Court dismissed the petition filed for pre-arrest bail. Thereafter the present bail application has been filed before this Court. It has been found by the Sessions Court that a reasonable apprehension of arrest is an essential requirement to invoke the provisions contained in Section 438 and if there is no such apprehension, Section 438 has no application. It is also found that there is no averment whatsoever in the application for pre-arrest bail to the effect that the petitioners have 'reason to believe' that they would be arrested or that they apprehend arrest. The Sessions Court relied on **George v. State of Kerala (2009 (1) KHC 160 : 2009 (1) KLT 277)** and **Arnesh Kumar v. State of Bihar ((2014) 8 SCC 273)** and also **Enforcement Officer, TED, Bombay v. Bher Chand Tikaji Bora &** ## **B.A.6060/21** **-4-** ## **Anr. [(1999) 5 SCC 720 : 1999 KHC 3925]** . 5. In **Bher Chand's** case, the allegation against the accused was that he has violated the provisions of Foreign Exchange Regulation Act which is a menace to the society and unless the accused alleges and establishes that he is being unnecessarily harassed by the investigating agency the Court would not be justified in invoking the jurisdiction under Section 438 Cr.P.C. and granting anticipatory bail. That was a case in which High Court granted anticipatory bail and in the facts and circumstances the Hon'ble Apex Court found that High Court was wholly unjustified in invoking the jurisdiction under Section 438 Cr.P.C. Obviously the fact situation of that case has no application to the case in hand. ## 6. Likewise **George v. State of Kerala and Anr [2009 (1)** **KLT 277 : 2009 (1) KHC 160]** was relied on by the Sessions Judge to find that a reasonable apprehension of arrest is an essential requirement to make the provisions under Section 438 Cr.P.C. But in that case summons was issued to the accused in committal proceedings in a case charged under Section 55(a) of Abkari Act, 1907, and accused approached the court apprehending arrest. In the **B.A.6060/21** **-5-** said circumstances that only a summons has been issued to him this Court was of the view that there cannot be any reasonable apprehension of arrest and hence prayer for anticipatory bail was refused. It also has no relevance to the case in hand. 7. The Sessions Judge also relied on **Arnesh Kumar v. State** **of Bihar & Anr. [(2014) 8 SCC 273]** and the specific direction given by the Apex Court to the police and courts relating to arrest and detention in cases where the offence involved is punishable with imprisonment not exceeding seven years. The directions to Magistrate not to mechanically order detention in such cases also has been emphasized. Thereafter the Sessions Court observed that petitioners/accused No.1 and 2 can approach the jurisdictional magistrate court under Section 437 Cr.P.C. 8. In **Arnesh Kumar** 's case the Apex Court has given specific directions to the police officers and also the judicial magistrates. But ultimately the prayer for anticipatory bail was allowed by the Apex Court. Section 437 Cr.P.C will have application when a person accused of, or suspected of the commission of a non bailable offence is arrested or detained with out warrant by an officer in charge of police **B.A.6060/21** **-6-** station or appears or is brought before a court etc. It is to avoid all those ordeals, the parties apprehending arrest are approaching the Sessions Court or this court by filing petitions for anticipatory bail. That cannot be simply refused by finding that there is no averment to the effect that applicant has reason to believe that they would be arrested or that they apprehend arrest. 9. It is not revealed from the order of sessions Court as to whether any report was filed by the respondent and whether there is any specific statement in the report that they have no intention to arrest the petitioners. On the other hand the order would show that the learned Public Prosecutor submitted to pass appropriate orders. That would indicate that there was no objection to the respondent in allowing the petition. 10. In the present case, the Sub Inspector of Police, Palluruthy along with the copy of the FIR and FIS filed a report in which it has been stated that the investigation is at the preliminary stage and investigation has to be conducted with regard to the gold ornaments and money given to the de facto complainant at the time of marriage and further investigation has to be conducted with regard **B.A.6060/21** **-7-** to the physical and mental torture which the de facto complainant was subjected to at the instance of the petitioners herein and hence he requested for refusing the bail application filed by the petitioners. So the report filed by the investigating officer would indicate that the apprehension of the petitioners that they would be arrested based on the complaint filed by the de facto complainant is not out of place. Though there is allegation regarding physical torture there is no allegation of any hospitalization or bodily injury sustained by the de facto complainant at the instance of the petitioners. In view of the nature of the offence alleged to have been committed by the petitioners, I do not think that a custodial interrogation is necessary. Report filed by the Sub Inspector of Police also would not reveal that petitioners are involved in any other crime. 11. In view of the above facts and circumstances and the nature of the offence alleged to have been committed by the petitioner, I am of the view that pre-arrest bail can be granted to the petitioners on the following conditions. i) The petitioner shall be released, in the event of arrest in connection with the above crime, on executing bond for a sum of Rs.35,000/- (Rupees thirty five **B.A.6060/21** **-8-** thousand only) with two sureties each for the like sum to the satisfaction of the court having jurisdiction. ii) The petitioners shall appear before the investigating officer for interrogation as and when required by him in writing. They shall co-operate with the investigation of the case. (iii). The petitioners shall make themselves available for interrogation by the Police Officer as an when required. iv) The petitioners shall not commit any offence while on bail. The bail application is allowed as above. **Sd/-** **M.R.ANITHA JUDGE** Mrcs