Tom George v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 ``` ``` BAIL APPL.NO.4527 OF 2024 ``` ``` CRIME NO.389/2024 OF Pala Police Station, Kottayam ``` ``` -------------- ``` ## **`PETITIONER/1ST ACCUSED :-`** ``` TOM GEORGE, AGED 57 YEARS S/O. JOB GEORGE, KOOTUMKAL HOUSE, EDAPPADY.P.O., BHARANANGANAM, PALA, KOTTAYAM, PIN - 686 578 ``` ``` BY ADV RASHEED C.NOORANAD ``` ## **`RESPONDENTS/STATE :-`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 STATION HOUSE OFFICER PALA POLICE STATION, KOTTAYAM DISTRICT, PIN - 686 578`** ``` SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.4527 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R Dated this the 10th day of June, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.389/2024 of the Pala Police Station, Kottayam, which is registered against the accused (four in number), for allegedly committing the offences punishable under Sections 341, 506, 354 and 354A r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution allegation is that; on 24.03.2024, at around 15 hrs., when the de facto complainant went to the house of the accused to return a borrowed pot, the accused restrained her and the first accused groped her on her breast and outraged her modesty. Thus, the accused have committed the above offences. ``` BAIL APPL.NO.4527 OF 2024 ``` ``` -: 3 :- ``` 4. Heard; Sri.Rasheed C. Nooranad, the learned counsel appearing for the petitioner and Smt.Neema T.V.., the learned Public Prosecutor appearing for the respondents. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. A reading of the First Information Report would substantiate that the said offence has been deliberately incorporated by the Investigating Officer to harass the petitioner. There are no incriminating materials to substantiate the said accusation. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the petitioner's involvement in the case. The petitioner had groped the breast of the de facto complainant and outraged her modesty. The ``` BAIL APPL.NO.4527 OF 2024 ``` ``` -: 4 :- ``` petitioner's custodial interrogation is necessary. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. On an evaluation of the materials on record, it can be gathered that a serious allegation is attributed against the petitioner that he outraged the modesty of the de facto complainant by groping her breast while she went to his house. The materials on record, especially the Case Diary, _prima facie_ establishes the petitioner's involvement in the crime, though that is a matter to be investigated and decided at the time of trial. It is settled law that in offences of such nature, this Court should be quite circumspect in granting an order of pre-arrest bail because it may hamper the investigation. 8. Recently, in **Srikant Upadhyay** v. **State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has observed in the following lines: ``` BAIL APPL.NO.4527 OF 2024 ``` ``` -: 5 :- ``` “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxxx xxxxxx xxxxx xxxxx xxx xxx xxx xxx xxx 24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx”. 9. In **Jai Prakash Singh** v. **State of Bihar and another** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional ``` BAIL APPL.NO.4527 OF 2024 ``` ``` -: 6 :- ``` cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 10. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, particularly considering the _prima facie_ accusations levelled against the petitioner which stands corroborated by the materials placed on record, I am not satisfied or convinced that the petitioner has made out any valid grounds to invoke the discretionary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Consequently, the bail application is dismissed. Nonetheless, I direct that, if the petitioner surrenders before the Investigating Officer within 10 days ``` BAIL APPL.NO.4527 OF 2024 ``` ``` -: 7 :- ``` from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the petitioner moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. **Sd/C.S. DIAS, JUDGE** Jvt/11.6.2024 ``` BAIL APPL.NO.4527 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL. 4527/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure 1TRUE COPY OF THE ORDER IN CRL.M.P. NO. 1401/2024 OF THE SESSIONS COURT, KOTTAYAM DATED 24-05-2024 ```