Amal Santhosh v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 4[TH] DAY OF MAY 2022 / 14TH VAISAKHA, 1944 BAIL APPL. NO. 3028 OF 2022** ## **PETITIONER/ACCUSED:** AMAL SANTHOSH AGED 23 YEARS SON OF SANTHOSH KUMAR, AMAL NIVAS, MURTHAKUNNAM SOUTH, ALAPPUZHA DISTRICT, PIN - 690506 BY ADVS. C.C.ANOOP SAJARUDHEEN PARAKKAL ROOPESH N.R. ## **RESPONDENT/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER KANAKAKUNNU POLICE STATION, ALAPPUZHA DIISTRICT, PIN - 690506 BY ADV. VIPIN NARAYAN, SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.3028 of 2022 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.3028 of 2022 ------------------------------Dated this the 4[th ] day of May, 2022 ## **O R D E R** This Bail Application is filed under Section 439 of Criminal Procedure Code. 2. Petitioner is the accused in Crime No.66 of 2021 of Kanakakkunnu Police Station, Alappuzha District. The above case is registered against the petitioner alleging offences punishable under the Indian Penal Code which includes Section 376(3) of IPC. The offences under the POCSO Act and the Juvenile Justice (Care and Protection of Children) Act is also alleged against the petitioner. Petitioner is in custody from 08.02.2022 onwards 3.The prosecution case is that the accused kidnapped the victim from the lawful custody of her parents, two months before the Onam in 2018 and B.A.No.3028 of 2022 3 had committed penetrative sexual assault on her. 4. Heard counsel for the petitioner and the Public Prosecutor. When this bail application came up for consideration on 22.04.2022, this Court directed the Prosecutor to issue notice to the victim through concerned Station House Officer. There is no appearance for the victim. Hence it is decided to hear the bail application. The counsel for the petitioner submitted that the alleged incident happened in 2018 and the complaint is filed after about 2½ years. The counsel also takes me through the contentions raised in ground B and C in the bail application. The counsel submitted that the petitioner is in custody from 08.02.2022 and the petitioner is ready to abide any conditions if this Court grant him bail. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the victim in this case is a minor. The Public Prosecutor submitted that the petitioner may B.A.No.3028 of 2022 4 not be released on bail at this stage. It is true that the allegation against the petitioner is very serious and that there is a delay of 2½ years in submitting the complaint by the victim. But that is not a ground to disbelieve the prosecution case at this stage. That is a matter to be decided at the time of trial. The petitioner is in custody from 08.02.2022 onwards. Considering the period of detention and also considering the submission of the petitioner which is narrated in ground B and C of the bail application, I think the petitioner can be released on bail on stringent conditions. 5. 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 5 ## B.A.No.3028 of 2022 is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 6. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any B.A.No.3028 of 2022 6 inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 5. The petitioner shall appear before the Investigating Officer on all Monday at 10 am till final report is filed. 6. If any of the above conditions are violated by the petitioner, the B.A.No.3028 of 2022 7 jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. Sd/- **P.V.KUNHIKRISHNAN, JUDGE** DM B.A.No.3028 of 2022 8 ## **APPENDIX OF BAIL APPL. 3028/2022** PETITIONER ANNEXURES ANNEXURE1 A TRUE COPY OF THE ORDER DATED 22.3.2022 IN CRL.M.P NO 727/2022 //TRUE COPY// PA TO JUDGE