IMPORTANT POINT
A person has a right to move either the High Court or the Court of Sessions for a pre-arrest bail under S.438 CrPC at his option. However, there is a line of judicial pronouncements that where a person chooses to move the High Court at the first instance under S.438 CrPC and his application is rejected, then he is precluded from moving the Court of Sessions on the same set of facts and circumstances for the second time.

ORDER :

Application filed for anticipatory bail under Section 438 of Cr.P.C.

2. The applicants are accused in Crime No. 1765 of 2020 of Thambanoor Police Station, Thiruvananthapuram, for having allegedly committed offences punishable under Sections 452, 323, 506, 294 (b) and 392 read with Section 34 of the Indian Penal Code.

3. The prosecution case, in brief, is that under a misapprehension that a video uploaded by the de facto complainant on the YouTube pertaining to some feminists refers to the 1st accused, at about 5 PM on or about 26/09/2020, the applicants in furtherance of common intention, having made preparation to wrongfully restrain, intimidate, assault and cause hurt to the de facto complainant, trespassed into the room No. 34 of "Shrinivas" Lodge at Thambanoor, where he was staying, questioned him about his alleged derogatory post in the YouTube channel, hurled abuses at him, put him in fear of assault, caused simple hurt by slapping him, and then smeared black ink over his body with the intention to humiliate him, rubbed stinging nettle plant on his body, attempted to disrobe him by pulling at his dothi, intimidated him, and robbed his laptop, mobile phone, headset and microphone.

4. The applicants would contend that the allegations are not true and that a false case has been foisted against them. The 1st applicant claims to be a film dubbing artist of repute while the 2nd and 3rd applicants are social workers, and activists in various fields and the 3rd applicant is also a student. It is stated that the de facto complainant had aired a disparaging video through the YouTube channel abusing feminists and reputed women in the State and in particular, made sly innuendoes against the 1st applicant and others intending to tarnish their reputation. Although he did not name the ladies he had abused, there was sufficient indication for the viewers that his slanderous allegations in the video were directed at the 1st applicant. She made a complaint regarding the said YouTube video of the de facto complainant to the Police, and in consequence of that, Crime No.725 of 2020 was registered against the de facto complainant at the Thiruvananthapuram Museum Police Station. On 25/09/2020, the 1st applicant had contacted the de facto complainant over the land phone and requested him to delete the offending YouTube video and also informed him about the complaint made against him before the Police. On learning that, he invited the 1st applicant to his lodgings to split differences. Accordingly, the applicants went to Shrinivas Lodge at the Pulimoodu by about 5 PM on 26/09/2020. The de facto complainant invited the applicants to his room for discussion. He demanded that the complaint filed by the 1st applicant be withdrawn prior to his deleting the video. The applicants were not agreeable for that. Irked, he hurled abuses at the applicants, and even outraged the modesty of the 1st applicant. Soon thereafter, the de facto complainant did express regret over his derogatory behaviour. The applicants went to Thambanoor Police station and handed over the laptop, headset and mike belonging to the de facto complainant gathered for the purpose of investigation. The 1st applicant also lodged a complaint against the de facto complainant for having outraged her modesty and that Crime was registered as No. 1764 of 2020 for an offence punishable under Section 354 I.P.C. Subsequent to that, the present Crime was registered against the applicants as No. 1765 of 2020 on a complaint made by the de facto complainant as a counter blast to the cases taken up against him. It is also stated that the offences as alleged in the F.I.R against the applicants are not sustainable. To attract an offence punishable under Section 294 (b) I.P.C hurling of abuses must have been done in a public place. Even admitting the allegations made by the de facto complainant, the incident took place inside a room. Offence under Section 452 I.P.C is not attracted because the applica