The Supreme Court on Monday granted Bail to two Advocates, practicing in the Courts at Tellicherry and at Kozhikode in Kerala, accused of raping and sexually assaulting a client who had approached them for assistance in pursuing her plea for divorce. The Court passed the order in the victim's SLP against the order of the Kerala High Court granting anticipatory bail to the accused. The accused were arrested after the Supreme Court earlier stayed the High Court's order.

Noting that there was interaction between the accused and the victim, the Bench of Justice Hrishikesh Roy and Justice Prashant Kumar Mishra directed, "the respondents must keep distance and shall not communicate in any manner with the victim or any of the other witnesses connected with the case."

Senior Advocate V. Chitambaresh appeared for the Petitioner victim and submitted that the Respondents (accused) are lawyers and were in a dominant position so far as the victim is concerned. The Senior Counsel argued that the Kerala High Court erred in granting anticipatory bail to them by the impugned Order dated October 18 2023.

On the contrary, Senior Advocate R. Basant appeared for the two Respondent advocates and contended that they were taken into custody on May 6, 2024, and currently they are lodged in jail.

Senior Advocate Jayanth Muth Raj, appearing for the State of Kerala, contended, that the investigation of the case is ongoing.

Taking note of the circumstances, the Bench said, "the fact that the respondent Nos. 1 and 2 were arrested, we deem it appropriate to grant bail to both accused i.e., M.J. Johnson and Philip K.K."

The Court ordered, "In consequence of the above order, the impugned order dated 18.10.2023 granting anticipatory bail by the High Court, is set aside and quashed." Accordingly, the Court disposed of the SLP.

On December 1, the Court had stayed an order passed by the Kerala High Court granting pre-arrest bail to the two Advocates.

The Kerala High Court had on October 18, 2023, allowed the anticipatory bail application of the two Advocates accused for the offence under Section 376, 354, 506, 120B read with Section 34 of the IPC. The argument that the grant of anticipatory bail in a case of this nature

The High Court had noted, "The allegations against the petitioners are no doubt serious. However, I must take note of the fact that even according to the de facto complainant / victim, she had first approached the 1st petitioner seeking his professional help in the year 2021. A cumulative reading of all the complaints preferred by the de facto complainant / victim would indicate that she was abused right from the time she had first approached the 1st petitioner seeking his professional help. However, the first complaint seems to have been filed only on 30-06-2023. While this itself may not be fatal to the prosecution case, it lends credence to the argument of the learned counsel for the petitioners that the de facto complainant / victim had actually filed a complaint being aggrieved by the fact that she had not received sufficient compensation in the proceedings before the Family Court."

It was also observed in the order that, "The argument that the grant of anticipatory bail in a case of this nature will have an impact on the society and will send a wrong message to the public at large does not appeal to this court as 'in this country we do not administer justice by plebiscite' [Judge Hiller B. Zobel at the trial of the Nanny, Louise Woodward, 1998]".

In the Special Leave Petition (SLP) before the Apex Court, the Appellant had contended that the High Court granted protection to the respondents from arrest without appreciating the material aspects placed by the petitioner and because they are practising advocates. The Appellant had stated that the High Court ought to have considered the fact that one among them being a former public prosecutor, who is well versed with the process of law and previously being an insider to the law enforcement agency made it all the more important that the investigation ought to have proceeded without the protection of the Court.

Cause Title: XXX v. M.J.Johnson & Ors. [Special Leave to Appeal (Crl.) No. 15122/2023]

Appearance:-

Petitioner: Senior Advocate V Chitambaresh, Advocates Jogy Scaria (AOR), Beena Victor, C Govind Venugopal, Vivek Guruprasad Ballekere, Keerthipriyan E, M Priya, Ashwani Kumar Soni

Respondent: Senior Advocates R. Basant, Jayanth Muth Raj, Advocates John Mathew (AOR) , Harshad V. Hameed (AOR), Dileep Poolakkot, Ashly Harshad, Shivam Sai

Click here to read/download the Order


Justice Hrishikesh RoyJustice Prashant Kumar Mishra

Sukriti Mishra