High Court of KeralaSingle Judge2020-09-23Bail granted under Section 438 CrPC with string...

Suji S. Lalu and Sudhakaran D v State of Kerala

Case / Petition Number:B.A.No.5767 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V.KUNHIKRISHNAN
Judgment Date: 2020-09-23
Court Decision / Holding: Bail Application allowed with stringent conditions: (1) petitioners to appear before IO within ten days for interrogation; (2) if arrest proposed, they shall execute bonds of Rs.50,000 each with two sureties of like amount; (3) petitioners to cooperate and not tamper with witnesses or facts; (4) not to leave India without court permission; (5) not to commit a similar offence; (6) adhere to COVID-19 social distancing guidelines; (7) court can cancel bail if conditions are violated.
Final Disposition: Bail granted under Section 438 CrPC with stringent conditions

Parties to the Case

Appellants / Petitioners

Suji S. Lalu
Sudhakaran D

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri Binu George

Counsels for Respondents

• Public Prosecutor (Ajith Murali)

Case Synopsis & Summary

This Bail Application (Section 438 CrPC) is filed by Suji S. Lalu and Sudhakaran D, accused in Crime No.2390/2020 of Eravipuram Police Station, Kollam, challenging an order/judgment in CRMC 1151/2020. The petition seeks bail in respect of offences including sections 317, 506(i), 323, 324 read with 34 IPC, and an allegation under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The prosecution case asserts that the first petitioner, mother of a 13-year-old defacto complainant, and the second petitioner subjected the children to mental and physical torture while they were residing with the first petitioner; the child’s brother’s welfare is also a factor. The incident is said to have occurred on 3 May 2019, with the complaint filed on 13 May 2020. The petitioners’ counsel contends matrimonial disputes and belated complaint, arguing that bail should be granted with stringent conditions. The Public Prosecutor counters that mental and physical harassment of a minor warrants caution and may justify denial or conditional bail. After hearing, the High Court, not expressing a view on merits, holds that bail can be allowed under stringent conditions, noting the gravity of a minor’s involvement and COVID-19 social distancing guidelines. Reliance is placed on Supreme Court dicta and a Full Bench of this Court. The order ultimately directs release on bail with strict conditions, subject to compliance and potential cancellation for violations.

Provisions of Law Cited

Section 438, CrPCSection 75 of Juvenile Justice (Care and Protection of Children) Act, 2015Sections 317, 506(i), 323, 324 read with Section 34 IPC

Legal Doctrines & Maxims

Bail is the rule and the jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that matrimonial discord led to actions against children; the alleged incident occurred in 2019 and the complaint in 2020; thus, the matter requires a measured approach and a bail grant with stringent conditions, given the time lapse and the possibility of false allegations amid domestic disputes. They urged that the right to fair trial and liberty under Section 438 CrPC favors bail in the interest of justice, particularly during COVID-19 restrictions.

Contentions of Respondents

The Public Prosecutor argued the gravity of allegations involving a minor and the potential for continued harassment; with Section 75 of the Juvenile Justice Act involved, the offenses cannot be treated lightly. He urged that bail be refused or strictly conditioned to safeguard the child’s welfare and ensure a fair investigation, emphasizing the seriousness of the non-bailable count and the danger to the minor’s safety.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Court cites the established principle that bail is the rule and refusal is the exception, as highlighted in this decision.
Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition(C) No.1 of 2020	Mentioned Only	Used to justify social distancing norms and directives in prisons during the pandemic; not a direct ratio for bail.
W.P.(C) No.9400 of 2020	W.P.(C) No. 9400 of 2020	Mentioned Only	Full Bench directions on minimizing prison population and related norms; cited as contextual support for guidelines.

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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 WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942 Bail Appl..No.5767 OF 2020 AGAINST THE ORDER/JUDGMENT IN CRMC 1151/2020 DATED 26-08-2020 OF DISTRICT COURT & SESSIONS COURT,KOLLAM CRIME NO.2390/2020 OF ERAVIPURAM POLICE STATION , Kollam** ## **PETITIONER/ACCUSED:** |**1**||**1. SUJI.S.LALU**| |---|---|---| |||**AGED 33 YEARS**| |||**W/O. LAL, RAVATHY, AAKOLIL NAGAR,**| |||**VALATHUNGAL., KOLLAM DISTRICT.**| |||**691011**| |**2**||**SUDHAKARAN.D**| |||**AGED 51 YEARS**| |||**S/O. DHARMARAJA PANICKER,**| |||**KRISHNA KRIPA, KOONAYIL,**| |||**NEDUNGOLAM.P.O, PARAVOOR,**| |||**KOLLAM DISTRICT.**| |||**691301**| |||**BY ADV. SRI.BINU GEORGE**| |**ENT/S**|**:**|| |||**STATE OF KERALA**| |||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA**| |||**682031**| ## **RESPONDENT/S:** B.A.No. 5767 OF 2020 2 ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 5767 OF 2020 3 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------- B.A.No. 5767 of 2020 ------------------------------Dated this the 23[rd] day of September, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioners are the accused in Crime No.2390 of 2020 of Eravipuram Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 317, 506 (i), 323, 324 r/w Section 34 of the IPC. The offence under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is also alleged. 3. The prosecution case is that first petitioner is the mother of the defacto complainant who is aged 13 years. The first petitioner is admittedly living with the second petitioner. Now, the defacto complainant son B.A.No. 5767 OF 2020 4 of the first petitioner is residing with his father. The allegation against the petitioners is that they assaulted the children and there is mental and physical torture also when the children were residing with the first petitioner. 4. Heard the counsel for the petitioners and the learned Public Prosecutor. 5. The counsel for the petitioners submitted that there is matrimonial dispute between the first petitioner and her husband. Now the children are with the husband of the first petitioner. The counsel submitted that now the husband filed false complaint against the petitioners using the children. The counsel also submitted that the alleged incident happened on 3.5.2019. The complaint filed by the children was only on 13.5.2020. 6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that, the petitioners mentally and physically harassed the B.A.No. 5767 OF 2020 5 children. In such circumstances, the Pubic Prosecutor submitted that this Court may not pass orders under Section 438 Cr.P.C. 7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. The only non-bailable offence alleged against the petitioners is under Section 75 of the Juvenile Justice Act. The maximum punishment that can be imposed for the offence under Section 75 of the Juvenile Justice Act is three years. Admittedly, there is some matrimonial dispute pending between the first petitioner and the father of the defacto complainant. Now the children are residing with the father. At that time, the present complaint is filed. I do not want to make any observation on the merit of the case. Considering the entire facts and circumstances, I think this Bail Application can be allowed on stringent conditions. B.A.No. 5767 OF 2020 6 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 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 B.A.No. 5767 OF 2020 7 ## 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 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 cooperate 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 B.A.No. 5767 OF 2020 8 accused, or suspected, of the commission of which she is 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. 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. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** al/-