Vibin @ Praveen and Subin vs State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5740 OF 2024 ``` ``` CRIME NO.453/2024 OF VADANAPPALLY POLICE STATION, THRISSUR AGAINST THE ORDER/JUDGMENT DATED 04.07.2024 IN CRMC NO.891 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THRISSUR PETITIONERS/ACCSUED 1 AND 2: ``` - **`1 VIBIN @ PRAVEEN AGED 24 YEARS S/O JAYAN, MARUTHO HOUSE, KUNDALIYOOR DESOM VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN - 680616`** - **`2 SUBIN AGED 35 YEARS S/O SUBRU, VADAKKUMTHALA HOUSE, ENGANDIYOOR DESOM VILLAGE, CHAVAKKAD TALUK, THRISSUR, PIN - 680615 BY ADVS. K.K.SUBEESH ROY THOMAS (MUVATTUPUZHA)`** ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.5740 of 2024 _-:2:-_ Dated this the 23[rd] day of July, 2024 ## **O R D E R** The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( in short, BNSS), for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 2 in Crime No.453/2024 of the Vadanappally Police Station, Thrissur, registered against them for allegedly committing the offences punishable under Sections 323, 354(l) (i), 354 (l) (ii), 354 (l) (iv), 354 A (2) and 354 A (3) r/w Section 34 of the Indian Penal Code, 1860 (IPC). 3. The gist of the prosecution case is that: on 04.06.2024, at around 12.30 hours, while the victim and her brother were walking through the road in front of Chittilapilly School, the accused 1 and 2, in B.A.No.5740 of 2024 _-:3:-_ furtherance of their common intention, uttered obscene words at the victim and her brother and, thereafter, the second accused slapped the brother of the victim. When the victim attempted to intervene in the matter, the first accused caught hold of her hand and pushed on her breasts and thereby outraged her modesty. Subsequently, the accused also slapped and kicked on the stomach of the brother of the victim. Thus, the accused have committed the above offences. 4. Heard; Sri. K.K.Subeesh, the learned counsel appearing for the petitioners, Sri.C.S.Hrithwik., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately incorporated Section 354 of the IPC, to see that the petitioners are incarcerated. A reading of Annexure A FIR would B.A.No.5740 of 2024 _-:4:-_ clearly reveal that the offence under Section 354 of the IPC cannot be attributed against the petitioners. He relied on the decision of this Court in **Sasidharan v. State of Kerala** [2005 KHC 981] to fortify his contention that in order to constitute an offence under Section 354 of the IPC, there must be assault or use of any criminal force to a woman with an intention to outrage the modesty of a woman. A reading of the First Information Report would clearly reveal that the incident took place between the petitioners and the brother of the victim. It is only when the victim attempted to intervene in the matter, that she allegedly got hurt. The petitioners are youth and have no criminal antecedents. The petitioners’ 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. He submitted that there are specific overt B.A.No.5740 of 2024 _-:5:-_ acts alleged against the petitioners for having outraged the modesty of the victim. He stated that the petitioners first assaulted the victim’s brother, and when the victim tried to intervene in the matter, the first accused consciously groped her breasts and outraged her modesty. Therefore, the petitioners’ custodial interrogation is necessary. Hence, the application may be dismissed. 7. On a scrutiny of the materials on record, especially after going through the allegations in Annexure A FIR, it is quite apparent that the initial altercation took place between the petitioners and the brother of the victim. It is only when the victim tried to intervene in the scuffle between the petitioners and her brother, that they allegedly pushed her. As rightly pointed out by the learned counsel for the petitioners there may not be any intention on the part of the petitioners at the initial stage itself to outrage the B.A.No.5740 of 2024 _-:6:-_ modesty of the victim. However, these are all matters to be investigated and ultimately decided at the time of trial. Nonetheless, I am convinced that the petitioner's custodial interrogation is not necessary. The petitioners have made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the petitioner are entitled to an order of pre-arrest bail; subject to the condition that the petitioners co-operate with the Investigating Officer. In the result, the application is allowed subject to the following conditions: (i) The petitioners are directed to surrender before the Investigating Officer within 10 days from today. (ii) In the event of arrest of the petitioners, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/- (Rupees B.A.No.5740 of 2024 _-:7:-_ fifty thousand only) each with two solvent sureties for the like amount each; (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. (iv) The petitioners shall not directly or indirectly make any inducement, threat or procure 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 or tamper with the evidence in any manner, whatsoever; (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passport, they shall file an affidavit to the effect before said court within the said period; (vi)The petitioners shall not get involved in any B.A.No.5740 of 2024 _-:8:-_ other offence while on bail; (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And another** [2020 (1) KHC 663]. (x) The observations made in this order are only for the purpose of considering the application and the B.A.No.5740 of 2024 _-:9:-_ same shall not be construed as an expression on the merits of the case to be decided by competent Courts. SD/- **C.S.DIAS,JUDGE** rmm/23/7/2024