Abdul Gafoor vs State Of Kerala

This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference.

Petitioner is the 2nd accused in Crime No.999 of 2020 of Alappuzha North Police Station, Alappuzha. The above case is registered against the

petitioner alleging offences punishable under Sections 323, 354, 354(A)(2) r/w. Section 34 IPC.

The prosecution case is that the 1st accused who is the husband of the de facto complainant, with his intention to earn money through prostitution,

on 26.9.2020 at 10 p.m the accused trespassed into the bedroom of de facto complainant and the 1st accused abetted her for prostitution and thereby

outraged her modesty.

Heard the counsel for the petitioner and the learned Public Prosecutor.

The counsel for the petitioner submitted that he filed an application before this Court under Section 438 Cr.P.C. As per the order dated 11.11.2020

in B.A.No.7226 of 2020, this Court directed the petitioner to surrender before the Investigating Officer and after interrogation, the petitioner was

directed to produce before the jurisdictional Court. This Court also directed the jurisdictional Court to consider the bail application preferably on the

date of filing of the same itself. The counsel submitted that the learned Magistrate without passing orders in the bail application, posted the case to

another day and passed Annexure-2 order, dismissing the bail application. The counsel submitted that the only non bailable offence alleged against the

petitioner is under Section 354 IPC. The counsel submitted that even if the entire allegations are accepted, no offence under Section 354 IPC is made

out.

The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the allegation against the petitioner and the 1st accused

are very serious.

After hearing both sides, I think this bail application can be allowed on stringent conditions. I make it clear that this order is applicable only to the

2nd accused. If any bail application is filed on behalf of the 1st accused, that will be considered separately on merit. The only offence alleged against

the petitioner is under Section 354 IPC. Whether the offence under Section 354 IPC is made out in this case is a matter to be investigated by the

Investigating Officer. Moreover, I remind the learned Magistrate about my observation in order dated 4.12.2020 in B.A.No.8112 of 2020, in which this

Court observed that when there is a direction from this Court to consider the bail application on the same day, the learned Magistrate should observe

the reason for not passing orders on that day in the order dismissing the bail application or allowing the bail application. That is not done in this case

also. Anyway, considering the entire facts and circumstances of the case and also considering the fact that the petitioner is in custody from

20.11.2020, I think this bail application can be allowed on stringent conditions.

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.

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.

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:

Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like

sum to the satisfaction of the jurisdictional Court.

The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner 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.

Petitioner shall not leave India without permission of the jurisdictional Court.

Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

The petitioner 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.

The petitioner shall appear before the Investigating Officer on all Mondays at 10 a.m for a period of two months.

If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is

granted by this Court.