Yovash Yesudas, Biju John and Anzil Abel v. State of Kerala and Station House Officer, Kanjirakulam Police Station, Thiruvananthapuram (B.A. No. 6797 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **WEDNESDAY, THE 28TH DAY OF OCTOBER 2020 / 6TH KARTHIKA, 1942** ## **Bail Appl..No.6797 OF 2020** ## **CRIME NO.1406/2020 OF KANJIRAMKULAM POLICE STATION , THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** - **1 YOVASH YESUDAS,AGED 29 YEARS, S/O. YESUDAS. KOCHUPALLY, PULLUVILA P.O,THIRUVANANTHAPURAM- 695526 695526** - **2 BIJU JHON, AGED 26 YEARS, KOCHUPALLY PULLLUVILA P.O PUTHIYATHURA TRIVANDRUM 695526** - **3 ANZIL ABEL AGED 21 YEARS ANZILABEL KOCHUPALLY PULLUVILA P.O, TRIVANDRUM 695526 BY ADV. SRI.M.R.SARIN** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** - **2 STATION HOUSE OFFICER, KANJIRAKULAM REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA 682031** - **BY SRI.RENJITH.T.R., PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A.NO.6797 OF 2020 2** ## **O R D E R** ## **Dated this the 28th day of October 2020** ... **This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.** **2. The petitioners are the accused in Crime No. 1406 of 2020 of Kanjiramkulam Police Station, Thiruvananthapuram District. The above case is registered against the petitioners alleging offences punishable under Sections 452, 323, 324, 392, 427, 506 r/w. Section 34 of the Indian Penal Code (IPC).** **3. The prosecution case is that, on 2.10.2020 at 8 p.m., the 1[st] and 2[nd] accused trespassed in to the compound of the house of the defacto complainant and fisted on the face and legs of the defacto complainant. It is also alleged that, the accused pushed him down. It is the further case of the prosecution that, the defacto complainant in fear of death ran into his house. When the family members of** **B.A.NO.6797 OF 2020 3** **the defacto complainant obstructed the 1[st] accused, he slapped on the chest of the defacto complainant's father and pushed down the wife of the defacto complainant. It is alleged that, the 1[st] accused threatened the defacto complainant's mother and wife by showing a knife. It is alleged that, the 1[st] accused pulled down the television worth Rs.30,000/and the 2[nd] accused busted three windows of the house using an iron rod. When the accused tried to stab the defacto complainant, his wife obstructed and thereby an incised wound was caused to her left hand. It is alleged that, the 1[st] accused attacked the mother of the defacto complainant. On hearing the noise, when the brother-in-law of the defacto complainant tried to enter into the house, the 3[rd] accused attacked him. During this time, the 1[st] accused snatched gold chain of three sovereigns. The mother and wife of the defacto complainant tried to escape in an autorikshaw from the scene of occurrence. The gold chain is worth Rs.1,20,000 and the television is worth Rs.30,000/-. It is alleged that, altogether there is a loss of** **B.A.NO.6797 OF 2020 4** **Rs.1,55,000/-. Hence it is alleged that, the accused committed the said offences.** **4. Heard the learned counsel for the petitioners and the learned public prosecutor.** **5. The learned counsel for the petitioners submitted that, the non bailable offence alleged against the petitioners under Section 392 IPC is not attracted in this case. The counsel submitted that, the other non bailable offence alleged against the petitioners is under Section 452 IPC. The counsel submitted that, even according to the prosecution, the accused were not entered into the house of the defacto complainant and hence the offence under Section 452 IPC is not attracted in this case. The counsel submitted that, the loss of rupees attributed against the petitioners is one exaggerated.** **6. The learned Public Prosecutor seriously opposed this bail application. The public prosecutor submitted that, the petitioners trespassed into the house of the defacto complainant at 8 p.m. and committed mischief. The public prosecutor submitted** **B.A.NO.6797 OF 2020 5** **that, according to the defacto complainant, the loss sustained to them will come to Rs.1,55,000/-. The public prosecutor submitted that, this Court may not invoke the extra ordinary jurisdiction under Section 438 Cr.P.C. in this case.** **7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. The non bailable offences alleged against the petitioners are under Sections 452 and 392 IPC. The allegation is that, the petitioners trespassed into the house of the defacto complainant and committed mischief. According to the defacto complainant, she sustained a loss of Rs.1,55,000/-. It is true that, the allegation against the petitioners are very serious. The learned counsel for the petitioners submitted that, subject to the result of the investigation/trial and other proceedings, if any, the petitioners are ready to deposit the alleged loss sustained to the defacto complainant and on such condition, this Court may kindly grant them bail. The learned public prosecutor submitted that, if the** **B.A.NO.6797 OF 2020 6** **petitioners are ready to deposit the amount, this Court may consider their bail application in accordance to law. Considering the entire facts and circumstances of this case, I think, this bail application can be allowed on stringent conditions. There can be a direction to the petitioners to deposit Rs.50,000/- (Rupees Fifty thousand only) each before the jurisdictional Magistrate Court within three weeks from the date on which they are released on bail by the investigating officer. The disposal of the amount will be subject to the final decision in the investigation/trial or other proceedings, if any.** **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.** **B.A.NO.6797 OF 2020 7** **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 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** **B.A.NO.6797 OF 2020 8** **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 accused, or** **B.A.NO.6797 OF 2020 9** ## **suspected, of the commission of which they are suspected;** **6. The petitioners shall deposit an amount of Rs.50,000/- (Rupees Fifty thousand only) each before the jurisdictional Magistrate Court within three weeks from the date on which they are released on bail by the investigating officer. The disposal of this amount will be subject to the final decision of the investigation/ trial or other proceedings, if any;** **7. 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;** **8. If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the** **B.A.NO.6797 OF 2020 10** **bail in accordance to law, even though the bail is granted by this Court.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**