Vinayamohan.S vs State Of Kerala

P.V.Kunhikrishnan, J

This Bail Application is filed under Section 438 of Criminal Procedure Code.

Petitioner is the accused in Crime No.347/2022 of East Kallada Police Station, Kollam. The above case is registered against the petitioner alleging offences punishable under Sections 354 and 354(A) of the Indian Penal Code.

The prosecution case is that the petitioner outraged the modesty of the defacto complainant.

Heard the counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the allegation against the petitioner is false. The counsel submitted that on 22.03.2022 at 3.45 pm, the defacto complainant and her father trespassed into the property of the petitioner by breaking open the gate and they brutally attacked the petitioner with a knife and vettukathi. The petitioner lodged a complaint before the Police as evident by Annexure-A1. It is submitted that thereafter, as a counter blast, the present complaint is filed. The counsel also takes me through Annexures A1 to A4 produced along with the bail application. The Public Prosecutor seriously opposed the bail application. This Court considered the contentions of the petitioner and the Public Prosecutor. This Court also considered Annexures A1 to A5 produced along with the bail application. There are allegations and counter allegations about the incident. This Court is not in a position to decide the correctness of the allegation at this stage. But, considering the facts and circumstances, custodial interrogation of the petitioner may not be necessary. In the light of the facts and circumstances of the case, I think the Bail Application can be allowed on stringent conditions.

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.

Recently the Apex Court in Siddharth v State of Uttar  Pradesh  and  Another  (2021(5)KHC  353) considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder.

“12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

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:

The petitioner shall appear before the Investigating Officer within two weeks from today and shall undergo interrogation.

After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer concerned.

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.

The petitioner shall not leave India without permission of the jurisdictional Court.

The petitioner shall appear before the Investigating Officer on all Mondays and Fridays at 10 am, till final report is filed.

The 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.

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. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated.