Susheel Kumar vs State Of Kerala

This is an application filed u/s 438 of Code of Criminal Procedure seeking pre-arrest bail.

The petitioner is the accused in Crime No.496/2019 of Nagaroor Police Station. The offences alleged are under Sections 354A(1)(ii) of IPC and Sections 67 and 67A of the Information Technology Act.

The prosecution case in short is that the defacto complainant had sent her nude photos to the mobile phone of her husband, when he was working abroad during the year 2013-2014. At that time, the husband of the defacto complainant was using the mobile phone of the petitioner. During holidays, the petitioner visited the room of the husband of the defacto complainant and took the photos of the defacto complainant from the mobile phone of her husband. It is alleged that by using the photos, the petitioner demanded sexual favours from the defacto complainant and the defacto complainant informed the same to her husband and at the instance of her husband, the same was informed to the wife of the petitioner. Due to that animosity, it is alleged that the petitioner sent nude photos to the friends and relatives and thereby committed the offences.

Heard both sides and perused the case diary.

The learned counsel for the petitioner submitted that the petitioner is absolutely innocent and he has been falsely implicated in the present case. He further submitted that there are no materials to connect the petitioner with the alleged crime and hence he is entitled to get bail. The learned Public Prosecutor opposed the bail application. He contended that the alleged incident occurred as a part of the intentional criminal acts of the petitioner and if the petitioner is released on bail at this stage, it would affect the course of investigation.

The alleged incident was taken place during 2017-2019. The defacto complainant raised the allegation only on 29.5.2019. There is no explanation for the delay. There is no case for the defacto complainant that it was the petitioner who published her photos from a forged profile. Annexure 2 complaint given by the defacto complainant to the Superintendent of Police, Thiruvananthapuram would show that it was she, who took the photographs and the sent the same in the mobile phone. The petitioner has no criminal antecedents. Considering the allegations levelled against the petitioner, his custodial interrogation does not appear to be necessary. For all these reasons, the petitioner is entitled to pre-arrest bail on conditions.

In the result, the application is allowed on the following conditions:-

(i) The petitioner shall be released on bail in the event of his arrest on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be.

(ii) The petitioner shall fully co-operate with the investigation, including subjecting himself to the deemed police custody for the purpose of discovery, if any, as and when demanded.

(iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The petitioner shall also appear before the investigating officer as and when required by him.

(iv) The petitioner shall not commit any offence of like nature while on bail.

(v) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The petitioner shall not leave State of Kerala without the permission of the trial Court.