Suresh Babu M B and Dileep P V v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 20TH DAY OF AUGUST 2020 / 29TH SRAVANA, 1942** ## **Bail Appl..No.5008 OF 2020** **CRIME NO. 828 OF 2020 OF SULTHAN BATHERY POLICE STATION, WAYANAD DISTRICT.** ## **PETITIONER/S:** **1 SURESH BABU M B AGED 48 YEARS S/O. BALAN, PUSHPALAYAM HOUSE, BEENACHI, DHOTTAPPANKULAM P O, SULTHANBATHERY, WAYANAD-673592 2 DILEEP P V AGED 35 YEARS S/O. DIVAKARAN, PUTHIYAVEETTIL HOUSE, BEENACHI, DHOTTAPPANKULAM, SULTHANBATHERY, WAYANAD-673592** **BY ADV. SRI.T.G.RAJENDRAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM - 682031** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 5008 of 2020 2 ## **P.V.KUNHIKRISHNAN, J. ================== B.A.No. 5008 of 2020** **================== Dated this the 20[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 in crime No. 828 of 2020 of Sulthan Bathery Police Station, Wayanad District. The above case is registered against the petitioners alleging offences punishable under Sections 323, 341, 354 A read with Section 34 of the Indian Penal Code (IPC). The offence under Section 75 of the Juvenile Justice (Care and Protection of Children) Act is also alleged. 3. The prosecution case is that, on 31.07.2020 while the defacto complainant and her brother were taking food along with their grandmother, the 1[st] B.A.No. 5008 of 2020 3 petitioner came there and the 2[nd] petitioner attempted to take food by his hand from the plate of her brother. He objected and when she interfered, the 2[nd] petitioner caught hold of her and tried to hold her garments and pushed her by chest and beat her. When her brother interfered he was also pushed by the 2[nd] petitioner. Brother is aged 17 years and the defacto complainant is aged 20 years. Then she contacted her mother and maternal grandfather. The maternal grandfather came and took her to the Taluk Hospital. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that, the only non bailable offence alleged against the petitioners are under Section 75 of the Juvenile Justice (Care and Protection of Children) Act. According to the learned counsel, even if, the entire allegations are accepted, the offence under Section 75 of the JJ Act is not attracted in the facts and circumstances of the case. The learned counsel for the petitioners also B.A.No. 5008 of 2020 4 submitted that, the other offences alleged are bailable offences. The learned counsel for the petitioners also submitted that, they are ready to abide any conditions, if this Court grants them bail. 6. The learned Public Prosecutor seriously opposed the bail application. The learned Public Prosecutor submitted that, the conduct of the petitioner can not be appreciated. The learned Public Prosecutor submitted that, the defacto complainant is the daughter of the 1[st] petitioner. The learned Public Prosecutor also submitted that Crime No. 1836/2017 and Crime No. 1309/2015 are pending before the Sulthan Bathery Police station against the 1[st] petitioner. As far as the 2[nd] petitioner is concerned, there are 9 cases registered against him at Sulthan Bathery, Police Station and one of the case is registered under Section 20(b)(ii)A of the NDPS Act. The learned Public Prosecutor seriously opposed the bail application, considering the fate of the children of the 1[st] petitioner. 7. After hearing both sides, I am forced to allow B.A.No. 5008 of 2020 5 this bail application, because the offences alleged against the petitioners are mainly bailable offences. Whether the offence under Section 75 of the Juvenile Justice (Care and Protection of Children) Act is attracted is a matter to be investigated by the Investigating Officer. Admittedly, there is some dispute between the 1[st] petitioner and his wife. Litigations are pending between them. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. One of the condition that, I am going to impose is that the petitioners shall not enter the jurisdictional limit of the Sulthan Bathery Police Station, Wayanad District, till the final report is filed in crime No. 828 of 2020. I make it clear that, if there is any order obtained by the petitioners from the Family Court or any other Court, the petitioner can approach this Court for relaxation of the above conditions. Therefore, this bail application can be allowed. 8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread B.A.No. 5008 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: ## _1. The petitioners shall appear before the_ B.A.No. 5008 of 2020 7 _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;_ _5. The petitioners shall not commit an offence similar to the offence of which they are_ B.A.No. 5008 of 2020 8 _accused, or suspected, of the commission of which he 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. The petitioners shall not enter the jurisdictional limit of the_ Sulthan Bathery Police Station, Wayanad District, till the final report is filed in crime No. 828 of 2020. 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