Kerala High Court
Roshin vs State Of Kerala on 13 October, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942
Bail Appl..No.6392 OF 2020
CRIME NO.2005/2019 OF Ernakulam Central Police Station , Ernakulam
PETITIONER:
ROSHIN
AGED 22 YEARS
SON OF RADHAKRISHNAN
NIVEDYAM HOUSE, KADCHIRA P.O,
KADAMBUR VILLAGE, KANNUR
PIN-670621
BY ADV. SRI.ABDUL RAOOF PALLIPATH
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM,
PIN-682031
SRI.RENJITH.T.R., PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
13.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.6392 of 2020 2
P.V.KUNHIKRISHNAN, J
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B.A.No.6392 of 2020
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Dated this the 13th day of October, 2020
ORDER
This Bail Application is filed under Section 438 of Criminal Procedure Code was heard through Video Conference.
2. Petitioner is the accused in Crime No.2005 of 2019 of Ernakulam Central Police Station. The above case is registered against the petitioner alleging offence punishable under Sections 501, 354A(1)(iv) r/w. Section 34 IPC. The offence under Section 67A of the Information Technology Act and Section 120(O) of the Kerala Police Act is also alleged.
3.The prosecution case is that the petitioner is a student studying for BPT(Bachelor of Physio Therapy) in Magalore. The prosecution alleged that the petitioner misused the photographs of the victim and transmitted through social media. It is alleged that the photographs of the victim girl is forwarded to a whatsapp group telegram and several people B.A.No.6392 of 2020 3 contacted the victim. Hence, it is alleged that the accused committed the offence under Section 67A of the Information Technology Act and other offences.
4. Heard the counsel for the petitioner and the learned Public Prosecutor.
5. The counsel for the petitioner submitted that the petitioner is a student studying at Mangalore. He has no connection with the case. The counsel submitted that the only non bailable offence is Section 67A of the Information Technology Act. The maximum punishment that can be imposed under Section 67A of the Information Technology Act is five years. Therefore, he may be released on bail in the light of the Full Bench decision of this Court. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grant him bail.
6. The learned Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that there is a genuine grievance from the victim in this case. The Public Prosecutor submitted that her photographs along with her B.A.No.6392 of 2020 4 phone number was forwarded to the telegram group by which people started to call her. The Public Prosecutor submitted that the petitioner may not be granted anticipatory bail in the facts and circumstances of the case.
7. After hearing both sides, I think the bail application can be allowed on stringent conditions. The only non bailable offence alleged against the petitioner is under Section 67A of the Information Technology Act. The maximum punishment that can be imposed under Section 67A of the Information Technology Act is five years.
8. Considering the entire facts and circumstances of the case, I think the petitioner can be released on bail on stringent conditions. The main grievance of the victim is that the petitioner is misusing her photographs in social media. Therefore, there can be a direction to the petitioner not to use social media till the investigation in Crime No.2005 of 2019 is over. This Court considered this point in Muhammed Shifas v State of Kerala ((2020(5) KHC 154) that such a condition can be imposed while granting bail.
B.A.No.6392 of 2020 5
9. 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.
10. 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.
11. 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:
B.A.No.6392 of 2020 6
1. The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation.
2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail 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 officer concerned.
3. 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.B.A.No.6392 of 2020 7
4. Petitioner shall not leave India without permission of the jurisdictional Court.
5. 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.
6. 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.
7. The petitioner shall not use social media like whatsapp, facebook, twitter etc. till the investigation is in Crime No.2005 of 2019 is over. The Investigating Officer will intimate the victim in this case about such a condition.
If there is any violation of the same by the petitioner, the Investigating Officer can do the needful in accordance with law. The B.A.No.6392 of 2020 8 Investigating Officer can approach the lower court for cancellation of bail, even though the order is passed by this Court.
8. The petitioner shall surrender his mobile phone before the Investigating Officer at the time of surrender.
9. 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.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE cms