IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 27^TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946 BAIL APPL. NO. 611 OF 2025 CRIME NO.890/2024 OF Karimannoor Police Station, Idukki AGAINST THE ORDER/JUDGMENT DATED 10.01.2025 IN CRMC NO.1070 OF 2024 OF DISTRICT COURT & SESSIONS COURT,THODUPUZHA PETITIONER(S)/1ST ACCUSED:

JOSE @ JOSEPH DEVASSY AGED 72 YEARS, S/O DEVASSIA, VAZHAKKATT HOUSE, EDAMARUKU KARA UDUMBANNUR VILLAGE THODUPUZHA TALUK IDUKKI., PIN – 685 584 BY ADVS.

C.S.MANILAL S.NIDHEESH RESPONDEN T ( S )/STAT E :

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031 BY ADV.

SRI. HRITHWICK C.S., SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.01.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

P.V.KUNHIKRISHNAN, J.

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BA No.611 of 2025 --------------------------------------------

Dated this the 27^th day of January, 2025

O R D E R

This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

2. The petitioner is an accused in Crime No.890/2024 of Karimannoor Police Station, Idukki. The above case is registered against the petitioner alleging offences punishable under Sections 329(3), 126(3), 74, 75(1), 115(2), 351(2) r/w 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023.

3. The prosecution case is that, while the defacto complainant standing in the courtyard of her house, the 1^st accused caught hold of her hair and pulled her to the property of the 1^st accused, then pressed her breast and at that time, the brother-in- law of the 1^st accused also pressed on her breast and another unidentified person kicked on her abdomen. Hence, it is alleged that the accused committed the offences.

4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the only non-bailable offence alleged against the petitioner is under Section 74 and 75(1) of BNS. Even if the entire allegations are accepted, no offence under Section 74 and 75(1) of BNS is attracted. The counsel also submitted that, even if the prosecution case is accepted, the intention of the accused is to assault not to outrage the modesty of the victim. The counsel also submitted that the petitioner is ready to abide any conditions imposed by this Court, if this Court grants him bail.

6. The learned Public Prosecutor opposed the bail application. The Public Prosecutor made available the wound certificate of the victim and submitted that the victim sustained corresponding injury over the breast.

7. This Court considered the contentions of the petitioner and the Public Prosecutor. It is true that the allegation against the petitioner is very serious. But, the only non-bailable offence alleged against the petitioner is under Section 74 and 75(1) of the BNS. Whether the ingredients of Section 74 and 75(1) of BNS is attracted in the facts and circumstances of the case is a matter to be investigated. I don’t want to make any observation about the same. According to the petitioner, there is some property dispute between the parties and this false case is filed in connection with the same.

Again, I don’t want to make any observation about the same. Considering the facts and circumstances of the case and also considering the fact that the maximum punishment that can be imposed for the offence under Section 74 and 75(1) of BNS is below 7 years, I think, bail can be granted to the petitioner after imposing stringent conditions.

8. 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 t