High Court of KeralaSingle Judge2022-10-13Crl.M.C Nos. 5791/2022 and 5885/2022 disposed o...

State of Kerala v. Civic Chandran @ C.V. Kuttan

Case / Petition Number:CRL.M.C. Nos. 5791/2022 and 5885/2022; Crime No. 501/2022 (KOYILANDY PS)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Dr. Kauser Edappagath
Judgment Date: 2022-10-13
Court Decision / Holding: The High Court disposed of both Crl.M.Cs by confirming the pre-arrest bail granted by the Sessions Court, Kozhikode, subject to specific conditions (bond, sureties, cooperation with investigation, weekly appearances, no witness tampering, and restriction on leaving Kerala). The court expunged the remarks from the impugned order that commented on the victim’s sexually provocative dress, citing Aparna Bhat to maintain the fairness of bail proceedings. The order observed that the delay in filing the FIR and the accused’s age were relevant factors but did not justify denying bail given the stage of investigation.
Final Disposition: Crl.M.C Nos. 5791/2022 and 5885/2022 disposed of; pre-arrest bail confirmed with conditions; remarks about provocative dress expunged; matter not remitted for further disposal; bail conditions enumerated.

Parties to the Case

Appellants / Petitioners

State of Kerala
XXX XXX (De facto complainant)

Respondents

Civic Chandran @ C.V. Kuttan
State of Kerala
Station House Officer, Koyilandy Police Station

Legal Representation & Advocates

Counsels for Petitioners

• Sri T A Shaji, DGP
• U. Jayakrishnan
• C. Anoop
• Sooraj D.

Counsels for Respondents

• Nirmal S Veena Hari
• Sri T A Shaji, DGP

Case Synopsis & Summary

This High Court of Kerala case (Crl.M.C. Nos. 5791/2022 and 5885/2022) challenges a Sessions Court Kozhikode order granting pre-arrest bail to the accused in Crime No. 501/2022 of Koyilandy Police Station. The offences alleged are under Sections 354 and 341 IPC, with the prosecution alleging that on 8 February 2020 the accused, during a cultural camp near Nandi beach, allegedly embraced and outraged the modesty of a young female writer. The Sessions Court granted pre-arrest bail on 12 August 2022, prompting the state and the de facto complainant to approach the High Court. The state contends that the bail order demonstrates improper exercise of discretion under Section 438 Cr.P.C., reliance on irrelevant considerations, and erroneous observations about the victim’s dress undermining the charge under Section 354A. The de facto complainant-victim argues the order is legally flawed and merits reversal. The accused contends merits for bail citing advancing age (74), near completion of investigation, and a long delay in filing the FIR (about 2½ years). During hearing, the court expunged remarks about provocative dress, acknowledging that dress is not a lawful ground to absolve the accused and emphasized a survivor-friendly approach. The High Court ultimately confirms the pre-arrest bail with conditions, without remitting the matter for further disposal.

Provisions of Law Cited

Section 438 Cr.P.C.Sections 354 and 341 IPCSection 354A(2) IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The State contends that the Sessions Court’s grant of pre-arrest bail under Section 438 Cr.P.C. was an improper exercise of discretionary power, affected by irrelevant or germane considerations, and inconsistent with the seriousness of the alleged sexual offences. It challenges the remark in the bail order that the victim’s sexually provocative dress would negate Section 354 IPC, emphasizing the need for a survivor-friendly approach and reliance on the law, not on the victim’s attire. It cites the obligation of courts to avoid judicial indiscipline and to expunge improper observations, aligning with the Supreme Court’s position in Aparna Bhat to keep dress or past conduct out of bail considerations. Respondents:The accused argues for bail on merits, highlighting advanced age, the lengthy investigation, and delays in filing the FIR. The court’s observation about the victim’s dress is argued to be misplaced but not determinative; the defendant emphasizes lack of custodial necessity given the state of investigation and the personal circumstances of the elderly accused and the long lapse since the alleged incident.

Contentions of Respondents

The respondents submit that the bail order should not be disturbed if the need to investigate and ensure cooperation is satisfied. They emphasize that the delay in lodging the FIR should not by itself negate the possibility of the offence, though it may bear on credibility and the manner of probe. They defend the Sessions Court’s discretion and rely on the progress of investigation, the age and health of the accused, and the need to balance public interest with personal liberty. They contend that the judge’s remarks about the victim’s attire are peripheral and that sanctity of fair trial should be preserved.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Aparna Bhat and Others v. State of Madhya Pradesh and Another	2021 (2) KHC 603	Positive	The court relied on this Supreme Court/Apex guidance to expunge improper remarks about the victim’s dress and to uphold a survivor-friendly approach in bail determinations.

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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 DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944 CRL.MC NO. 5791 OF 2022** **AGAINST THE ORDER IN CRMC 1303/2022 OF SESSIONS COURT,KOZHIKODE DTD.12.8.2022** ## **PETITIONER/COMPLAINANT:** STATE OF KERALA REP. BY THE ADDL. PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN - 682031 BY SRI T A SHAJI-DGP ## **RESPONDENT/ACCUSED:** CIVIC CHANDRAN @ C.V.KUTTAN AGED 73 YEARS , S/O LATE VELAPPAN, CHINNANGATH HOUSE, WEST HILL (P.O.) KOZHIKODE., PIN - 673005 BY ADVS.NIRMAL S VEENA HARI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.10.2022, ALONG WITH Crl.MC.5885/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.Nos.5791 & 5885/2022 -:2:- # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944 CRL.MC NO. 5885 OF 2022 AGAINST THE ORDER IN CRMC 1303/2022 OF SESSIONS COURT, KOZHIKODE CRIME No.501/2022 of Koyilandy Police Station** ## **PETITIONER/DE FACTO COMPLAINANT:** XXX XXX BY ADVS.U.JAYAKRISHNAN C.C.ANOOP SOORAJ D. ## **RESPONDENTS/STATE & ACUSED:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER KOYILANDY POLICE STATION, KOZHIKODE DISTRICT, PIN - 673305 3 CIVIC CHANDRAN @ C.V KUTTAN, AGED 73 YEARS, S/O.LATE VELAPPAN, CHINNANGATH HOUSE, WEST HILL, P.O., KOZHIKODE, PIN - 673005 BY ADVS.NIRMAL S VEENA HARI SRI.T.A.SHAJI, DGP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.10.2022, ALONG WITH Crl.MC.5791/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.Nos.5791 & 5885/2022 ## -:3:- **==> picture [42 x 10] intentionally omitted <==** ## **O R D E R** Both these Crl.M.Cs. have been filed to set aside the order granting pre arrest bail by the Sessions Court, Kozhikode (for short 'the court below') to the accused in Crime No.501/2022 of Koyilandy Police Station. 2. Crl.M.C.No.5791/2022 has been filed by the State. The respondent therein is the accused. Crl.M.C.No.5885/2022 has been filed by the de facto complainant/victim. The 3[rd] respondent therein is the accused. 3. The crime was registered against the accused based on the statement given by the victim on 29.7.2022. 4. The offences alleged are punishable under Sections 354 and 341 of the Indian Penal Code. 5. The prosecution allegation is that, on 8.2.2020 at 5 p.m., there was a cultural camp in Kadal veedu on Nandi beach. After the function, while the victim, who was a young female writer, was taking rest near the seashore, the accused forcefully Crl.M.C.Nos.5791 & 5885/2022 ## -:4:- embraced and outraged her modesty. 6. The accused moved an application for pre arrest bail at the court below as Crl.M.C.No.1303/2022. The court below after hearing the accused as well as the prosecutor granted pre arrest bail to the accused as per the order dated 12.8.2022. The said order is under challenge in both these Crl.M.Cs. 7. I have heard Sri.T.A.Shaji, the learned Director General of Prosecution, Sri.Jayakrishnan, the learned counsel for the victim and Smt.Veena Hari, the learned counsel for the accused. 8. The learned Director General of Prosecution submitted that the court must be cautious and circumspect in exercising the power under Section 438 of the Cr.P.C. which is discretionary in nature and that if the discretionary power to grant pre arrest bail was exercised without any valid reason or on considerations irrelevant or not germane to the determination, such order could not be sustained. The learned Director General of Prosecution further submitted that there was improper exercise of jurisdiction Crl.M.C.Nos.5791 & 5885/2022 ## -:5:- by the learned Sessions Judge while admitting the accused to bail and perverse and unwarranted findings were made in the impugned order. The observation in the impugned order that Section 354 of the IPC will not be attracted if the victim was wearing sexually provocative dress cannot be sustained, submitted the learned Director General of Prosecution. Relying on the decision of the Apex Court in _**Aparna Bhat and Others v. State of Madhya Pradesh and Another**_ (2021 (2) KHC 603), the learned Director General of Prosecution submitted that the above observation in the bail order amounts to judicial indiscipline and is liable to be expunged. 9. The learned counsel for the de facto complainant, Sri.Jayakrishnan, submitted that the court below granted pre arrest bail to the accused on wrong understanding of facts, circumstances and the law that too by making unwarranted findings. According to the learned counsel, the impugned order suffers from serious infirmities. The learned counsel further submitted that the statement given by the victim would clearly Crl.M.C.Nos.5791 & 5885/2022 ## -:6:- attract the ingredients of the offence under Section 354 of the IPC and when _prima facie_ case is made out, the court below ought not to have granted pre arrest bail. The learned counsel for the accused, Smt.Veena Hari, on the other hand, submitted that, though the observation in the impugned order regarding the wearing of sexually provocative dress by the victim appears to be misplaced, on merits, the accused is entitled for pre arrest bail. There is undue delay of 2½ years in lodging the FIR, the investigation is practically over and the accused is a senior citizen. In these circumstances, the order granting pre arrest bail by the court below cannot be upset, submitted the learned counsel. 10. The accused is a well known writer and social activist, aged 74 years. The victim also is an artist and a writer. She is a post-graduate. A perusal of the FIS would show that there are sufficient ingredients to attract the offences punishable under Sections 354, 354A(2) and 341 of the IPC. Still, the court below heavily relying on certain pictures of the victim published in Crl.M.C.Nos.5791 & 5885/2022 -:7:- social media observed that Section 354A of the IPC will not be _prima facie_ attracted as the victim was wearing sexually provocative dress. 11. Everyone has the freedom to wear whatever he/she wants to wear subject to the laws of the land. Objectifying women in regard to what she wears cannot be justified. There is no reason why a woman should be judged by her clothes. Norms that categorize woman based on her attire and expressions can never be tolerated. There cannot be any thought that women dress only to lure male attention. It is wrong to say that a woman was sexually assaulted just because she was wearing provocative clothes. Sexually provocative dressing of a victim cannot be construed as a legal ground to absolve an accused from the charge of insulting the modesty of a woman. The right to wear any dress is a natural extension of personal freedom guaranteed by the Constitution of India. Even if a woman wears a sexually provocative dress, that cannot give a licence to a man to outrage her modesty. The Apex Court in _**Aparna Bhat**_ (supra) Crl.M.C.Nos.5791 & 5885/2022 -:8:- has held that discussion about the dress, behaviour, or past conduct of the victim should not enter the verdict while granting bail to the accused. It was further observed in the said judgment that the Judges should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court. For these reasons, the remarks in the impugned order regarding provocative dress of the victim cannot be sustained and they are hereby expunged. 12. The learned counsel for the de facto complainant submitted that, since the finding in the impugned order that, Section 354A of the IPC will not be attracted if the victim was wearing sexually provocative dress, is not sustainable, the bail application is to be remanded to the court below for fresh disposal. I cannot subscribe to the said submission. A perusal of the entire records would show that, even otherwise, on merits, the accused has made out a case for pre arrest bail. As stated already, the de facto complainant is an educated woman. She is a writer. The alleged incident took place on 8.2.2020. Annexure- Crl.M.C.Nos.5791 & 5885/2022 ## -:9:- A1 FIS was given only on 29.7.2022. Thus, there is a delay of 2½ years. It is true that in the matter of sexual offence, the delay does not have much significance. But, considering the fact that the de facto complainant is a very educated lady, she should explain the delay satisfactorily. The explanation shown by the de facto complainant in Annexure-A1 that the delay occurred due to fear and shame is vague and not convincing. That apart, the accused is a senior citizen, aged 74 years. The learned Director General of Prosecution submitted that the investigation is almost over. Considering the facts and circumstances of the case, custodial interrogation of the accused does not appear to be necessary. In these circumstances, I am of the view that, even though the reason shown by the court below for granting pre arrest bail cannot be justified, the order granting pre arrest bail by the court below cannot be set aside. However, the court below did not impose sufficient conditions while granting pre arrest bail. In these circumstances, the pre arrest bail granted by the court below to the accused is confirmed, but, subject to the following Crl.M.C.Nos.5791 & 5885/2022 -:10:- ## conditions:- - (i) The accused shall be released on bail in the event of his arrest on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be. - (ii) The accused shall fully co-operate with the investigation, including subjecting himself to the deemed police custody for the purpose of discovery, if any, as and when demanded. - (iii) The accused shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The accused shall also appear before the investigating officer as and when required by him. - (iv) The accused shall not commit any offence of like nature while on bail. - (v) The accused shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or Crl.M.C.Nos.5791 & 5885/2022 -:11:- influence any witnesses or other persons related to the investigation. - (vi) The accused shall not leave the State of Kerala without the permission of the court below. Both the Crl.M.Cs are disposed of as above. **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** skj Crl.M.C.Nos.5791 & 5885/2022 ## -:12:- ## **APPENDIX OF CRL.MC 5885/2022** PETITIONER'S ANNEXURES ANNEXURE A1 TRUE COPY OF THE FIS GIVEN BY THE PETITIONER IN CRIME NO.501/2022 OF THE KOIYALANDI POLICE STATION. ANNEXURE A2 CERTIFIED COPY OF THE ORDER DATED 12.08.2022 OF THE SESSIONS COURT, KOZHIKODE IN CMP NO 1303/2022 (CR.NO 501/2022 OF KOYILANDY POLICE STATION)