Irshad vs State of Kerala

K. Ramakrishnan, J.—This is an application for anticipatory bail filed by the 2nd accused in Crime No.2547/13 of Kottiyam Police Station u/s 438 of Code of Criminal Procedure.

The case of the prosecution in nutshell was that on 17.11.13 at about 7 p.m. the first accused who is the driver of a tourist bus bearing Reg.No.KL-02-K-7900 and 2nd accused who was the helper were in the process of taking reverse of the aforesaid tourist bus in front of Kannanalloor petrol pump in a rash and negligent manner and in that process it hit against the car of the de facto complainant causing a damage of Rs.5,000/- and thereafter the present petitioner who is the 2nd accused abused them with obscene words and in furtherance of common intention, the petitioner and first accused also assaulted the mother of the de facto complainant and thereby they have committed the offence punishable under Sections. 279, 323, 294(b), 506(1), 427, 354 read with Section 34 of Indian Penal Code. The Counsel for the petitioner submitted that even assuming that the entire allegations are accepted to be true, no offence u/s 354 of Indian Penal Code is attracted which has been made now non- bailable. He is prepared to abide to any conditions imposed by this court and co-operate with the investigation.

The application was opposed by the Public Prosecutor on the ground that the investigation is not over and offence has been committed against woman which has to be seriously viewed.

Heard both sides and perused the case diary file produced.

The incident occurred as an after effect of the tourist bus driven by the first accused happened to hit the car belonging to the de facto complainant while taking in the reverse with the help of the 2nd accused and the allegation was that after the hit, there was altercation occurred between them, and the present accused had abused the mother of the de facto complainant and assaulted her. It is true that on the basis of the allegations, criminal force has been applied against the woman. The learned Sessions Judge has dismissed the application on the ground that since criminal force has been used against the woman, he is not entitled to get anticipatory bail. I am not at this stage going to the question as to whether mere application of criminal force without an intention to outrage the modesty of the woman or whether it is likely to outrage the modesty of the woman etc will attack the offence u/s 354 of Indian Penal Code or not at this stage. Except this offence, other offences are bailable in nature. The custodial interrogation of the petitioner is not required in connection with the investigation as no weapon has been used for the commission of the offence as well. So under the circumstances, I feel that anticipatory bail can be granted to the petitioner which some conditions so as to make him to co- operate with the investigating officer will be sufficient and that will meet the ends of justice as far as both the parties are concerned. So, the application is allowed with the following conditions:

The respondent is directed to release the petitioner on bail in the event of his arrest in connection with the above crime on executing a bond for Rs.25,000/- with two solvent sureties for the like sum each to the satisfaction of arresting officer/investigating officer/the respondent as the case may be

That the petitioner shall appear before the investigating officer for the purpose of interrogation including for the purpose of identification of the accused by the witnesses for two consecutive days between 9 a.m. and 12 noon immediately after such arrest and release and thereafter as and when required by him for this purpose in connection with the investigation in writing to do so till the final report is filed.

The petitioner shall not intimidate or influence the witnesses.

The petitioner shall not leave State of Kerala without getting prior permission from the Judicial First Class Magistrate Court, No-III, Kollam till the final report is filed.

If the petitioner surrenders before the concerned magistrate court and moves for regular bail, then the learned magistrate is directed to release the petitioner on bail on the same conditions as stated above.

With the above conditions, the application is allowed.