Ali T.S vs State Of Kerala

Viju Abraham, J.

This is an application for Regular Bail.

The petitioners are accused Nos.1 to 5 in Crime No.856/2022 of Badiadka Police Station, Kasaragod alleging commission of offences punishable under Sections 143, 147, 452, 294 (b), 506 (i), 306 r/w Section 149 of the IPC and under Section 4 r/w 3 of the Kerala Health Care Service Person and Health Care Service Institution (Prevention of Violence and Damage of Property) Act, 2012.

The prosecution allegation is that, the 1st accused who is the brother of a patient, who consulted at S.S Bhutt Dental Clinic, threatened the deceased – Dr. Krishna Moorthy along with other accused, alleging that he misbehaved to his sister on the previous day while the consultation was going on and the prosecution alleges that due to the said threat exerted by the accused and also on account of demand of money, Mr.Krishna Moorthy committed suicide and the accused thereby committed the offence alleged.

The learned counsel for the petitioners submitted that the entire prosecution allegations are absolutely false and baseless. The sister of the 1st accused – aged 32 years a house wife, mother of three children, had to seek the assistance of a Dentist and she came for a consultation to S.S Bhutt Dental Clinic in Badiadka town. She got a booking on 24.10.2022 and even though she reached there on that day, due to heavy rush in the clinic she could not consult the Doctor and she was asked to come on 29.10.2022. On 29.10.2022, the deceased started attending her dental issue and while the process was going on, the Doctor misbehaved with her by scratching with his sexual organ on her hand muscle and other parts of the body and she thought that it was only an accidental contact and therefore she didn't make any issue on that day, she was asked to come again on 05.11.2022 and on that day too the Doctor sexually harassed her and attempted to modest her. When she tried to move from the dental chair, he scolded her and ask her to keep quite and lie down. Thereafter she went out of the clinic and informed the entire incident to her husband. The next day she fell ill due to fever which was occasioned by the said unfortunate incident. The deceased was trying to settle the matter by preventing her from filing any complaint before the police but she went to the Police Station and filed a compliant on 09.11.2022 and a case was registered as Crime No.855/2022 under Sections 354 and 354 A of the IPC as is evident from Anx.A2 – FIR. When the Doctor came up to know about the filing of the complaint, he left the clinic without informing anybody and thereupon, his wife filed a man missing complaint before the Badiadka Police and an FIR was registered as Crime No.856/2022 as is evident from Anx.A3 – copy of the FIR. Later, the police received an information to the effect that a body was found on the railway line at a place called Ajjimane near Kundapuram and subsequently the body was identified as that of the deceased. Thereafter the police converted Anx.A3 - FIR to one under Sections 143, 147, 452, 506(i), 294 B, 306 r/w Section 149 of the IPC and Section 4 r/w Section 3 of the Kerala Health Care Service Person and Health Care Service Institution (Prevention of Violence and Damage of Property) Act, 2012. Even though the petitioners moved an application before the Sessions Court, Kasaragod Division the same was rejected by Anx.A4 – order.

The learned counsel for the petitioners submitted that they are in custody from 10.11.2022 onwards and their further detention is not required for the purpose of the investigation. The petitioners have a further case that the ingredients of Section 306 as well as Section 4 r/w Section 3 of the Kerala Health Care Service Person and Health Care Service Institution (Prevention of Violence and Damage of Property) Act, 2012 is not attracted in the facts and circumstances of the case. The learned counsel for the petitioners relied on the judgments in Shri Ram v. State of U.P. [1975 KHC 708], Gurucharan Singh V. State of Punjab [2020 KHC 6567], Krishna Pillai v. State of Kerala [1988 KHC 523], Cyriac v. S.I. of Police [2005 KHC 1021], Faisal v. State of Kerala [2016 (2) KHC 578], and Sukumaran and Another v. State of Kerala [2022 (1) KHC 427] in support of their contention that the provisions of Section 306 of the IPC is not attracted in the facts and circumstances of the case.

The learned Public Prosecutor seriously opposed the application for bail mainly contending that the deceased was found missing and thereupon Anx.A3 – FIR was registered, later on found that the deceased committed suicide. Thereupon ,the offences punishable under Sections 143, 147, 452, 506 (i), 294 B, 306 r/w Section 149 of the IPC and Section 4 r/w Section 3 of the Kerala Health Care Service Person and Health Care Service Institution (Prevention of Violence and Damage of Property) Act, 2012 was incorporated. The investigation so far revealed that the 1st accused along with accused Nos.2, 3 and 4 went to the clinic of the deceased on 07.11.2022 and verbally abused the deceased and further that on 08.11.2022, accused Nos.1 to 5 went to the clinic of the deceased and he was verbally abused and got threatened. The 2nd accused attempted to manhandle him and the 3rd accused demanded huge amount of money from the deceased and due to the said mental and physical torture, the deceased on 08.11.2022, left the clinic and thereafter he was not found but later, his body was recovered from Ajjimane of Hattiyangadi Village. The learned Public Prosecutor further submitted that it is only due to the acts of the accused which led to the suicide of the deceased. It is further submitted that a crime has been registered as Crime No.855/2022 against the deceased on the basis of the complaint filed by one Haseena, who is the sister of the 1st accused. The investigation is conducted and the final report is already laid. Learned Public Prosecutor would submit that the death of the Doctor has raised serious law and order situation in the area and further that due to the timely intervention of the police, no untoward acts happened in the said locality. It is also contended that the investigation is going on and further that the 1st accused is involved in Cr. No.373/2011, Accused No.3 – Cr. No.7/2007, Accused No.5 – Cr. No.76/2017 all crimes registered by the Badiadka Police Station. To which, the learned counsel for the petitioners submitted that the 5th accused is a ward member and accused Nos.1, and 3 are social worker and politicians and the 1st case referred above registered against the 1st accused as Crime No.373/2011 is a politically motivated case, which was registered long back, the 2nd case, in which, the accused No.3 is involved ie., Cr. No.7/2007 has been disposed of long back. The 3rd case alleged against the accused No.5 as Crime No.76/2017 has to be registered against him as he in his capacity of a ward member, was the head of the committee for the work in connection with ''Janakeeya Asoothranam'' and while the work was going on the workers accidentally cut a BSNL cable and the 5th accused being the convener of the committee was also arrayed as an accused.

I have considered the rival contentions of the parties, it is seen that a crime was registered against the deceased as Anx.A2 alleging commission of offences punishable under Section 354 and 354 A of the IPC. As per the instructions from the learned Public Prosecutor, the investigation is over and the charge sheet is already laid in the said case. It is seen that the petitioners are in custody from 10.11.2022. I am of the opinion that the further detention of the petitioners is not required for the purpose of the investigation, I am inclined to grant bail to the petitioners but taking note of the apprehensions raised by the learned Public Prosecutor especially regarding the antecedents of the petitioners and the seriousness of the allegations the same shall only be on the following stringent conditions:

(i) The petitioners shall execute bond for a sum of Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like-sum to the satisfaction of the jurisdictional court;

(ii) Petitioners shall appear before the investigating officer in Crime No.856/2022 of Badiadka Police Station, Kasaragod on every Saturday at 11 am till the filing of the charge sheet ;

(iii) The petitioners shall appear before the investigating officer Crime No.856/2022 of Badiadka Police Station, Kasaragod as and when summoned to do so;

(iv) The petitioners shall not attempt to interfere with the investigation or to influence any witness in Crime No.856/2022 of Badiadka Police Station, Kasaragod ;

(v) The petitioners shall not enter into the jurisdictional limit of Badiadka Police Station, Kasaragod for a period of three months or until filing of the charge sheet whichever is earlier ;

(vi) The petitioners shall not leave the State of Kerala without obtaining prior permission from the jurisdictional court;

(vii) The petitioners shall not involve in any other crime while on bail.

If any of the aforesaid conditions are violated, the investigating officer in Crime No.856/2022 of Badiadka Police Station, Kasaragod may file an application before the jurisdictional court, for cancellation of bail.