Thulasi and Manoharan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 4[TH] DAY OF MAY 2022 / 14TH VAISAKHA, 1944 BAIL APPL. NO. 1178 OF 2022 ``` ``` CRIME NO.1463/2021 OF Punalur Police Station, Kollam ``` ## **`PETITIONER/S:`** ``` 1THULASI AGED 42 YEARS SON OF NARAYANAN, , THAMBURU BHAVANAM, PALOTTUKONAM, ELICODU P.O., KARAVALLOOR VILLAGE, PUNALUR, KOLLAM DISTRICT KOLLAM, PIN - 691322 2MANOHARAN AGED 49 YEARS SON OF CHEKKAPPAN, BINDHU BHAVAN, PALOTTUKONAM, ELICODU P.O., KARAVALLOOR VILLAGE, PUNALUR, KOLLAM DISTRICT KOLLAM, PIN - 691322 BY ADV SASTHAMANGALAM S. AJITHKUMAR ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY ADV PUBLIC PROSECUTOR SRI. VIPIN NARAYAN SR. GP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- BA No. 1178 of 2010 ## **P.V.KUNHIKRISHNAN, J.** ====================================================== B.A.No. 1178 of 2022 ============================================================= Dated this the 4[th ] day of May, 2022 ## **ORDER** This Bail Application is filed under Section 438 of Criminal Procedure Code. 2. The petitioners are accused in Crime No.1463 of 2021 of Punalur Police Station. The above case is registered against the petitioners alleging offences punishable under Sections 143, 147, 148, 294(b), 452, 323, 324, 308, 354 and 506(ii) read with Section 149 IPC. 3.The prosecution case is that on 24.11.2021 at 6.30 pm the petitioner and other accused formed into an unlawful assembly with deadly weapons like iron rods and wooden piece and criminally trespassed into the house of the _de facto_ complainant and dragged the _de facto_ complainant by holding on her hair and outraged her modesty by tearing her nighty and -3- BA No. 1178 of 2010 the other accused fisted and slapped her and her husband and child and thereby committed the offences. 4. Heard counsel for the petitioners and the Public Prosecutor. The counsel for the petitioners submitted that the allegation against the petitioners are not correct. It is submitted that even if the entire allegations are accepted, the offences under Section 308 and 354 IPC are not made out. The counsel also submitted that some of the accused are already released on bail under Section 438 Cr.P.C. It is also submitted that there is no criminal antecedents to the petitioners. The public prosecutor seriously opposed the bail application. The public prosecutor submitted that the petitioners and the _de facto_ complainants are neighbours. The prosecutor submitted that if the petitioners are released on bail under section 438 Cr.P.C. there is chance for further altercations. It is also submitted that serious injuries are sustained to the injured person. It is true that the allegations against the petitioners are very serious. But it is the fact that -4- BA No. 1178 of 2010 some of the accused are already released on bail under Section 438 Cr.P.C. It is also an admitted fact that there is no criminal antecedents to the petitioners. The public prosecutor submitted that the petitioners and the _de facto_ complainant are neighbours. In such circumstances, there can be a direction to the petitioners not to enter the jurisdiction limit of the police station concerned for a period of 60 days or till final report is filed in the case. 5. 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. 6. Recently the Apex Court in **Siddharth v State of Uttar Pradesh and Another (2021(5)KHC 353)** considered the point -5- BA No. 1178 of 2010 in detail. The relevant paragraph of the above judgment is extracted hereunder. “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.” 7. 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: -6- BA No. 1178 of 2010 1. The petitioners shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners, they shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting 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. Petitioners shall not leave India without permission of the jurisdictional Court. 5. Petitioners shall not commit an offence similar to the offence of which they are accused, or -7- BA No. 1178 of 2010 suspected, of the commission of which they are suspected. 6. Petitioners shall not enter the jurisdictional limit of Punalur Police Station for a period of 60 days or till the final report is filed. Petitioners shall give the phone number and the details of the place where they will reside during the above period to the investigating officer on the date of surrender itself. 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. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated. sd/- ## **P.V.KUNHIKRISHNAN JUDGE** das -8- BA No. 1178 of 2010 ## **`APPENDIX OF BAIL APPL. 1178/2022`** ``` PETITIONER ANNEXURES Annexure1THE TRUE COPY OF THE MEDICAL RECORD OF THE PETITIONER'S MOTHER IN LAW Annexure2THE TRUE COPY OF ORDER CRL.M.C. 2244/2022 OF ADDITIONAL SESSIONS JUDGE-II, KOLLAM DATED 7/2/22 ```