Shahul Hameed and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 11TH DAY OF AUGUST 2020 / 20TH SRAVANA, 1942** ## **Bail Appl..No.1201 OF 2020** **CRIME NO.81/2020 OF Palakkad Town South Police Station , Palakkad** ## **PETITIONERS/ACCUSED NO.2 TO 6:** |**1**|**SHAHUL HAMEED**| |---|---| ||**AGED 69 YEARS**| ||**S/O.CHANDU MUHAMMED, SHA MANZIL, KINASSERY P.O.,**| ||**PALAKKAD-678701.**| |**2**|**KHADEEJA,**| ||**AGED 61 YEARS**| ||**W/O.SHAHUL HAMEED, SHA MANZIL, KINASSERY P.O.,**| ||**PALAKKAD-678701.**| |**3**|**SHAHADEEN,**| ||**AGED 40 YEARS**| ||**S/O.SHAHUL HAMEED,METRO NAGAR, PIRAYIRI P.O.,**| ||**PALAKKAD-678004.**| |**4**|**NIZAR,**| ||**AGED 55 YEARS**| ||**S/O.MUHAMMED, AMBALATH HOUSE, PUTHANTHARA, MELARKODE**| ||**P.O., PALAKKAD-678703.**| |**5**|**RASHEED,**| ||**AGED 50 YEARS**| ||**S/O.MUHAMMED, AMBALATH HOUSE, KOTTEKAD,**| ||**CHERAMANGALAM, NENMMARA, PALAKKAD-678703.**| ||**BY ADVS.**| ||**SRI.SAIJO HASSAN**| ||**SRI.BENOJ C AUGUSTIN**| ||**SRI.RAFEEK. V.K.**| ||**SMT.SURYA P SHAJI**| ||**SHRI.MANAS P HAMEED**| ||**SHRI.GAUTHAM MOHAN H.**| ||**SMT.AATHIRA SUNNY**| ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** B.A.No. 1201 of 2020 2 **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 1201 of 2020 3 **P.V.KUNHIKRISHNAN, J. =================== B.A.No. 1201 of 2020 =================== Dated this the 11[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. The petitioners are accused No. 2 to 6 in Crime No. 81 of 2020 of Palakkad Town South Police Station. The above case is registered against the petitioners alleging offence punishable under Sections 376 and 420 read with Section 34 of the Indian Penal Code. The offence under Section 3 & 4 of the Muslim women (Protection of Rights on Marriage) Act, 2019. The allegation against the 1[st] accused includes an offence under Section 3 & 4 of the Muslim women (Protection of Rights on Marriage) Act, 2019. B.A.No. 1201 of 2020 4 3. The prosecution case is that the petitioners and the 1[st] accused mentally and physically harassed the defacto complainant. There is an allegation that the petitioners induced the 1[st] accused to marry another women, and therefore, the offence under Section 420 of the IPC is also committed. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the 1[st] and 2[nd] petitioner are the father and mother of the 1[st] accused. Third petitioner is the brother of the 1[st] accused. The other petitioners are relatives of the 1[st] accused. The learned counsel submitted that, there is no serious allegations against these petitioners. The offence under Section 3 & 4 of the Muslim women (Protection of Rights on Marriage) Act, 2019 is against the 1[st] accused. Therefore, the learned counsel also submitted that, the petitioners are ready to abide any conditions, if this Court grants them bail. B.A.No. 1201 of 2020 5 6. The learned Public Prosecutor even though opposed the Bail Application, submitted that, if this Court is granting bail stringent conditions may be imposed. 7. Admittedly, the offence under Section 3 & 4 of the Muslim women (Protection of Rights on Marriage) Act, 2019 is against the 1[st] accused. Therefore, the notice to the defacto complainant is not necessary in this bail application, in the light of the fact that, there is no allegation against these petitioners that, they committed an offence under Section 3 & 4 of the above Act. The allegation against these petitioners is that, they persuaded the 1[st] accused to marry another women. Hence, the petitioners committed the offence. Admittedly, there is a matrimonial dispute between the 1[st] accused and the defacto complainant. Considering the entire facts and circumstances of this case, 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 B.A.No. 1201 of 2020 6 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. 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: B.A.No. 1201 of 2020 7 _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 proposes 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 him from disclosing such facts to the Court or to any police officer;_ _4. The petitioners shall not leave India without permission of the Court;_ B.A.No. 1201 of 2020 8 _5. The 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 with respect to keeping of social distancing in the wake of Covid 19 pandemic._ 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** LU ## **//TRUE COPY// PA TO JUDGE**