Ambujakshy v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** ## **Bail Appl..No.5130 OF 2020** **[CRIME NO.377/2020 OF NEELESHWARAM POLICE STATION, KASARAGOD DISTRICT.]** ## **PETITIONER/ACCUSED:** **AMBUJAKSHY AGED 68 YEARS DWARAKA, P. MEMORIAL BUILDING, D.438 ROAD, KANHANGAD P.O, KASARAGOD PIN-671315** **BY ADV. SRI.C.S.MANILAL** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA PIN-682031** **2 XXX/VICTIM/INFORMANT.** ## **R1 BY SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A. NO.5130 OF 2020 2** ## **O R D E R** **Dated this the 17th day of September 2020** ... **O R D E R** **This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.** **2. The petitioner is one of the accused in Crime No.377 of 2020 of Neeleswaram Police Station, Kasaragod District. The above case is originally registered against 7 accused alleging offences punishable under Sections 376(2)(n), 376(3), 376(2) (g), 376(2)(f), 370, 370A, 354 of the Indian Penal Code (IPC) r/w. Sections 3, 4, 5(l), 5(n), 5(g), 5(ii) of the Protection of Children from Sexual Offences Act (POCSO Act). Subsequently, the petitioner is added as an accused in this case alleging offences punishable under Section 21 of the POCSO Act and under Sections 312 and 313 of the IPC. 3. The prosecution case is that, the victim in this case was only 15 years when she and her father** ## **B.A. NO.5130 OF 2020 3** **approached the petitioner herein who is a Gynecologist. The prosecution case is that, the petitioner has not reported to the police even though she came to know that, the victim in this case is a minor and she was pregnant. The scan report was produced before the doctor which will show that, the victim was pregnant when the petitioner examined her.** **4. Heard the learned counsel for the petitioner and the learned public prosecutor.** **5. The learned counsel for the petitioner submitted that, the petitioner is not involved in this case. The counsel submitted that, even if the entire allegations are accepted, no offence is made out against the petitioner. The counsel submitted that, the petitioner was doing her duty as a doctor. The counsel submitted that, the maximum punishment that can be imposed under Section 21 of the POCSO Act is only six months. The counsel sumitted that the offences under Sections 312 and 313 IPC are also not made out against the petitioner. The counsel** ## **B.A. NO.5130 OF 2020 4** **submitted that, the maximum punishment that can be imposed under Section 312 IPC is seven years. As far as Section 313 IPC is concerned, according to the counsel, the same is not attracted in the facts and circumstances of this case. The counsel submitted that, even if the entire prosecution case is accepted, there is no case for the prosecution that the petitioner committed the offence under Section 313 IPC.** **6. The learned Public Prosecutor opposed this bail application. The public prosecutor submitted that, even after knowing that the victim girl is only 15 years, the petitioner has not reported the same to the police. The victim and her parents produced the scan report which will show that, the victim was pregnant.** **7. After hearing both sides, I think, this bail** **application can be allowed on stringent conditions.** **The petitioner is a Gynecologist. She retired from the Health service after completing about 43 years of service. According to the counsel for the** ## **B.A. NO.5130 OF 2020 5** **petitioner, there is no allegation against the petitioner during her career. I do not want to make any observation about the merit of this case. Considering the entire facts and circumstances of this case and also considering the fact that the petitioner is aged 68 years, I think, this bail application can be allowed on stringent conditions.** **8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in Re: Contagion of COVID19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench of this Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons.** **9. 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,** ## **B.A. NO.5130 OF 2020 6** **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 the opportunity of securing fair trial.** **10. 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. The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation;** **2. After interrogation, if the** **Investigating Officer proposes to arrest the petitioner, she shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the** **satisfaction of the officer** ## **B.A. NO.5130 OF 2020 7** ## **concerned;** **3. 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 inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;** **4. The petitioner shall not leave** **India without permission of the** ## **Court;** **5. The petitioner shall not commit an offence similar to the offence of which she is accused, or suspected, of the commission of which she is suspected;** **6. The petitioner shall strictly** ## **B.A. NO.5130 OF 2020 8** **abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic;** **7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court.** **Sd/-** **pkk** **P.V.KUNHIKRISHNAN JUDGE**