Nissam And Ors vs State Of Kerala

This application is filed under Section 438 of the Code of Criminal Procedure.

The petitioners are the accused 1 to 3 in Crime No.449/2021 of Kundara Police Station. The offences alleged against the petitioners are punishable under Sections 294(B), 341, 323, 354, 354-B R/W 34 IPC.

The prosecution case: The de facto complainant is the wife of the brother of the 1st petitioner. The de facto complainant questioned the children of the petitioners regarding the damage caused to some flower pots kept in her courtyard on 11.03.2021. The petitioners intervened in the matter. The 1st petitioner voluntarily caused hurt to the de facto complainant by means of a stick on her back and leg. The 1st petitioner also used criminal force to the de facto complainant intending to outrage her modesty. The petitioners attempted to disrobe the de facto complainant.

The case of the petitioners: In connection with the damage caused to some flower pots kept in the courtyard of the de facto complainant, a quarrel occurred between the petitioners and the defacto complainant. Subsequently, at the instigation of some neighbours, the de facto complainant, after a delay of nine days, submitted a false complaint before the Police which led to the registration of this crime.

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

The learned counsel for the petitioners submitted that the parties are very close relatives and what actually occurred was a quarrel between the parties in connection with a domestic affair and the petitioners never intentionally committed any acts as alleged. The learned counsel for the petitioners further submitted that the delay of nine days in registering the FIR points to the falsity of the prosecution case.

The learned Public Prosecutor submitted that the prosecution has no serious objection in granting bail to the petitioners provided they are ready to cooperate with the investigation.

Having gone through the materials this Court is of the view that custodial interrogation of the petitioners is not required.

The materials available lead me to conclude that there is some doubt as to the mens rea of the petitioners in the commission of the alleged acts. There is no possibility of the petitioners to flee from justice. Considering the entire circumstances, I am of the view that the petitioners could establish a prima facie case for getting the benefits contemplated under Section 438 of the Code of Criminal Procedure.

In the result, this Bail Application is allowed as follows :

(i) The petitioners shall appear before the Investigating Officer on 10.05.2021, for interrogation.

(ii) The investigating officer is directed to release the petitioners, on bail, in the event, they are arrested, on their executing bond for Rs.50,000/- (Rupees Fifty Thousand only) each with two solvent sureties each for the like sum.

(iii) The petitioners shall appear before the Investigating Officer as and when required.

(iv) The petitioners shall not interfere with the process of investigation. The petitioners shall not influence or intimidate the witnesses in this case.