Amal Joy v. State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5974 OF 2024 ``` ``` CRIME NO.877/2024 OF KOTHAMANGALAM POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` AMAL JOY AGED 19 YEARS S/O JOY, VELLAKKATTU HOUSE, AMBIKAPURAM BHAGAM, ALLUNGAL, THALAKKODU KARA, NERIYAMANGALAM VILLAGE, ERNAKULAM, PIN – 686693 ``` ``` BY ADVS.K.R.PRATHISH P.K.SREEVALSAKRISHNAN ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX` ## `OTHER PRESENT:` ## `SR PP SMT SEETHA S` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.5974/2024_ _-:2:-_ _Dated this the 26[th] day of July, 2024_ ## **O R D E R** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the sole accused in Crime No.877/2024 of the Kothamangalam Police Station, Ernakulam, which is registered against him for allegedly committing the offences punishable under Sections 354, 354A(1)(i) of the Indian Penal Code, 1860, and Section 8 read with Section 7 of the Protection of Children from Sexual Offences Act, 2012. The petitioner was arrested and remanded to judicial custody on 29.06.2024. 2. The gist of the prosecution case is that: on 05.06.2024, at around 17.15 hours, the accused, with an intention to commit sexual assault on the victim, a 15-year-old girl, embraced and forcefully kissed her on her lips and outraged her modesty. Thus, the accused has committed the above offences. _B.A.No.5974/2024_ _-:3:-_ 3. Heard; Sri. K.R.Prathish, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime at the instance of the father of the victim. In fact, the petitioner and the victim are in love and have maintained a relationship for quite some time. It is only when the father of the victim came to learn about the relationship, that he has forcefully made the victim lodge the present complaint. The petitioner is a 19-year-old student, without any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last 30 days, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner's further detention is not necessary. Hence, the _B.A.No.5974/2024_ _-:4:-_ application may be allowed. 5. The learned Public Prosecutor opposed the application. There are incriminating materials to substantiate the petitioner's involvement in the crime. If the petitioner is released on bail, there is every likelihood of him intimidating the victim and her witnesses and also tampering with evidence. Hence, the application may be dismissed. 6. The prosecution allegation is that the petitioner had forcefully kissed the victim and outraged her modesty. The fact remains that the petitioner has been in judicial custody for the last 30 days, the investigation in the case is practically complete, and the recovery has been effected. Furthermore, the petitioner does not have any criminal antecedents. 7. In **Dataram Singh v. State of U.P** . [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is the rule and putting a person in jail is _B.A.No.5974/2024_ _-:5:-_ an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 8. **In State of Kerala v. Raneef** [(2011) 1 SCC 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 9. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and _B.A.No.5974/2024_ ## _-:6:-_ unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 10. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 30 days, the petitioner does not have any criminal antecedents, and the investigation in the case is complete, I am of the firm view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. _B.A.No.5974/2024_ _-:7:-_ In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 877/2024. - (ii) The petitioner shall not directly or indirectly make any inducement or threat to the victim or her witnesses or to any person acquainted with the facts of the case, so as to dissuade them from disclosing such facts to the court or to any Police Officer, or tamper with the evidence in any manner, whatsoever; - (iii) The petitioner shall not commit any offence while he is on bail; _B.A.No.5974/2024_ _-:8:-_ - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; - (v) The petitioner shall not enter the Taluk where the victim and the witnesses are residing till the conclusion of the trial in Crime No.877/2024, other than for the purpose of reporting to the Investigating Officer; - (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation ofbail, if any filed, and pass orders on the same, in accordance with law. - (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (viii) Needless to mention, it would be well within the powers of the Investigating Officer to _B.A.No.5974/2024_ _-:9:-_ investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and Another** [2020 (1) KHC 663]. - (ix) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- ## **C.S.DIAS,JUDGE** DST/26.07.24 //True copy// P.A. To Judge