Jostin Francis vs State Of Kerala

This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.

Petitioner is the accused in Crime No.842/2020 of Kalpetta Police Station. The above case is registered against the petitioner alleging offences

punishable under Sections 354(A) and 354(B) IPC.

The prosecution case is that the petitioner is a doctor by profession. It is alleged that the petitioner made sexual advances towards a patient on

23.10.2020 when she consulted the petitioner at his clinic.

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

The petitioner is a Psychiatrist employed in the General Hospital, Kalpetta. The counsel for the petitioner submitted that this is a false case foisted

against the petitioner. The counsel submitted that he is not blaming the victim in this case. Admittedly, the victim in this case is suffering from some

mental depression. That is why she approached the petitioner. The counsel submitted that psychosis is defined as the mental disorder in which the

thoughts, effective response, ability to recognize reality and ability to communicate and relate to others are sufficiently impaired to interfere grossly

with the capacity to deal with reality, the classical characteristics of psychosis are impaired reality testing hallucinations, delusions and illusions. It is

stated in the bail application that the delusion is defined as false belief, based on incorrect inference about external reality, that is firmly held despite

objective and obvious contradictory proof or evidence and despite the fact that other members of the culture do not share the belief. The counsel also

produced Annexures 1 and 2 study reports. Anneuxre 1 is an article by one Richard C.W.Hall. The article is published in a magazine Law and

Psychiatry. The caption of the article is False Allegations: The Role of the Forensic Psychiatrist. Similarly he relied Annexure 2 another article also on

the same subject. The counsel submitted that admittedly, the victim in this case is suffering from some mental disorder. According to the petitioner, it

is a case foisted by her because of her mental illness. The counsel submitted that a reading of first information statement also will show that it is highly

improbable that the petitioner committed such an offence in a clinic when other patients are also waiting. The counsel also produced a statement of

another patient who also consulted the petitioner on the same day, which is produced as Annexure 3. The counsel also submitted that Annexure 4 is

also another statement of a pharmacist, who is working near the clinic. The counsel also submitted that the only non bailable offence alleged against

the petitioner is under Section 354B IPC. The maximum punishment that can be imposed under Section 354B IPC is only three years. The counsel

submitted that he is entitled the benefit of Full Bench decision of this Court.

The learned Public Prosecutor seriously opposed the bail application. The Public Prosecutor made available the first information statement of the

victim. The Public Prosecutor submitted that the allegations against the petitioner are very serious.

After hearing both sides, I think, this bail application can be allowed on stringent conditions. I don't want to make any observation about the merit of

the case. According to the petitioner, no such incident happened. But the victim says that such an incident is happened. According to the victim, the

offence under Section 354B IPC is made out. But it is clear that the offences alleged against the petitioner can be proved only through oral evidence.

For that purpose, custodial interrogation of the petitioner may not be necessary. Moreover, the only non bailable offence alleged against the petitioner

is under Section 354B IPC. The maximum punishment that can be imposed under Section 354B IPC is three years. Considering the entire facts and

circumstances of the case, I think, this bail application can be allowed on stringent conditions.

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.

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.

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 ten days from today and shall undergo interrogation.

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.

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.

Petitioner shall not leave India without permission of the jurisdictional Court.

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.

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.

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.