Allowed

Dhanesh Prabhakaran v. State of Kerala

Kerala HC16 Mar 2021Bail Appl./251/2021

Case brief

AI extract

What is this about?

High Court at Ernakulam allowed an anticipatory bail application filed by four accused persons apprehending arrest for offences under IPC Sections 153 and 506. The Court noted the possibility of future charges under Sections 153A and 295A IPC on grounds of provocation. Finding the apprehension reasonable and noting no objection from the bakery complainant, it granted bail with a bond requirement.

What did the court decide?

Bail application allowed; applicants entitled to pre-arrest bail; on arrest, released on bail on execution of bond for Rs. 50,000 each with two sureties for like amounts.

Dhanesh Prabhakaran Vs State of Kerala — Bail and Remand | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942

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Bail Appl..No.251 OF 2021

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CRIME NO.0726/2020 OF Chengamanad Police Station , Ernakulam

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PETITIONER/S:

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1 DHANESH PRABHAKARAN, AGED 38 YEARS PEECHAMPILLI HOUSE,KODUSSERRY, VATTAPPARAMBU.P.O,ALUVA, 683579

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2 ARUN ARAVIND, AGED 32 YEARS VYMELI HOUSE,VATTAPPARAMBU.P.O, KARIPPASSERY 683579

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3 SUJAY SUBRAHMANIAN, AGED 39 YEARS PINDANI,VATTAPPARAMBU.P.O, KODISSERY,ALUVA, PIN-683579.

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4 LENIN.T.A, AGED 38 YEARS KUNJATHAN HOUSE,THRIKKALLOOR PARAMBU,KURUMASSERY.P.O., PIN 683579.

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BY ADVS.

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SMT.E.S.SONI SRI.R.KRISHNA RAJ SMT.KUMARI SANGEETHA S.NAIR

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, 682031

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2 JOY, AGED 49 YEARS, KODIYAN HOUSE, THUMBANASSERY,KAKKULASSERY,MALA, PIN – 680732.

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R1 BY PUBLIC PROSECUTOR R2 BY ADV. SRI.ENOCH DAVID SIMON JOEL R2 BY ADV. SRI.S.SREEDEV R2 BY ADV. SRI.RONY JOSE R2 BY ADV. SHRI.CIMIL CHERIAN KOTTALIL

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OTHER PRESENT:

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SRI.SANTHOSH PETER SR PP

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26.02.2021, THE COURT ON 16.03.2021 PASSED THE FOLLOWING:

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O R D E R

Dated this the 16th day of March 2021

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

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The applicants are accused in Crime No.726/2020 of Chengamanad Police Station for having allegedly committed offences punishable under Sections 153 and 506 read Section 34 of the I.P.C.

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The prosecution case, in brief, is that accused 1 to 4 had on 20/12/2020 at about 4 PM, in furtherance of common intention to promote enmity between different groups on the grounds of religion and the malignancy, wantonly provoked the de facto complainant who is conducting a bakery under the name and style Modi Bakery at Kurumassery junction and intimidated Mithun, an employee of the bakery and served a notice prepared on the letterhead of 'Hindu Aikyavedi'

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precluding the bakery from exhibiting a sticker indicating that halal food is being served in the bakery. The halal sticker was directed to be removed within 7 days in failure of which, threat of boycott of the bakery and organising protests by the Hindu Aikyavedi was made. On the basis of a complaint filed by the owner of the bakery, the crime was registered.

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The applicants apprehend arrest and have therefore approach this Court for anticipatory bail. It is stated that Parakadavu panchayat, where the bakery is situated has only 7 Muslim families from out of a total population of 36,000. The staff of the bakery informed the 2nd applicant that they are selling only halal food in the bakery. In that case, the 2nd applicant insisted that the sticker should be, 'halal foods only'. The bakery cannot force halal food on Hindus residing in that area and that is the reason why the applicants insisted on removing the sticker and intimated that they would protest such activities of the bakery. Immediately the sticker was

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removed. It is at the instance of political parties like the CPM and SDPI, that the crime has been registered. It is now understood that an offence under Sections 153A and 295A of the I.P.C are intended to be incorporated in the F.I.R. Hence, the applicants seek pre-arrest bail.

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The offences alleged against the applicants at present are only under Sections 153 and 506 I.P.C. Both the offences are bailable and hence, application under Section 438

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of Cr.P.C for anticipatory bail is not maintainable. But the applicants apprehend that the non-bailable Sections of 153A and 295A IPC may be incorporated with the intention to incarcerate the applicants. And hence, the learned counsel Sri R Krishna Raj appearing for the applicants submits that the applicants are entitled to pre-arrest bail.

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The learned Sr. Public Prosecutor Sri.Santhosh Peter

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does not deny the possibility of Sections 153A and 295A I.P.C being incorporated in the crime. Under the circumstances, it

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has to be examined whether the applicants are entitled to prearrest bail.

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In order to attract an offence punishable under Section 153-A I.P.C the accused must by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, or grounds of religion, race, place of birth, residence, language, caste or community or any other ground, whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or caste or communities, or commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity.

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Similarly to attract an offence under Section 295-A I.P.C, there must be a deliberate and malicious Act intended to outrage religious feelings of any class by insulting its religion

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or religious beliefs.

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A reading of the F.I.R does not indicate such an act on the part of the applicants. Nothing was done by them to promote hatred between two groups. The de facto complainant has appeared through counsel and has submitted that he has no objections in granting anticipatory bail to the applicants. The sticker which was found offending to the applicants was already removed by the de facto complainant from his bakery.

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Even though Section 153-A or 295-A IPC is not incorporated in the F.I.R, the recitals in the F.I.R indicate that the act of the applicants was intended to promote disharmony between two religious groups. Under the circumstances, there is a possibility of incorporating those non-bailable offences in the F.I.R. The apprehension of arrest expressed by the applicants is therefore, reasonable. Hence, I find that the applicants are entitled to pre-arrest bail.

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The bail application is allowed and in the event of their

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arrest, the applicants shall be released on bail on execution of bond for 50,000 (Rupees fifty thousand only) each with two₹

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solvent sureties for like amount each to the satisfaction of the arresting officer subject to the conditions under Section 438

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(2) Cr.P.C.

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Sd/-

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ASHOK MENON JUDGE

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Dhanesh Prabhakaran v. State of Kerala

Case brief

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Dhanesh Prabhakaran v. State of Kerala

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