Anesh v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 25[TH] DAY OF APRIL 2024 / 5TH VAISAKHA, 1946 BAIL APPL. NO. 2367 OF 2024 ``` ``` CRIME NO.1213/2023 OF NEDUMKANDAM POLICE STATION, IDUKKI ``` ## **`PETITIONER/ACCUSED:`** ``` ANESH, AGED 21 YEARS S/O ANILKUMAR KUZHIVELIL HOUSE MURUKANPARA BHAGAM KOMBAYR KARA, PARATHODU VILLAGE NEDUKANDAM IDUKKI DISTRICT, PIN - 685552 ``` ## **`BY ADV JOSEPH T.JOHN`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER, THE NEDUKANDAM PALA POLICE STATION NEDUKANDAM POST, IDUKKI DISTRICT, PIN – 685553`** ``` SR.PUBLIC PROSECUTOR SRI.C.S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.2367 of 2024** ``` 2 ``` ## **Dated this the 25[th ] day of April, 2024 O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.1213/2023 of the Nedumkandam Police Station, Idukki, registered against the accused (two in number) for allegedly committing the offences punishable under Sections 328, 363, 376(1), 376(2)(j), 354 and 34 of Indian Penal Code, under Sections 3(a) r/w 4(1), 5(i) r/w 6, 7 r/w 8 and 16(2) r/w 17 of the Protection of Children from Sexual Offences Act, under Section 3(1) (wi), 3(2)(V) of the Scheduled Castes and the Schedule Tribes (Prevention of Atrocities) Act, 1989, under Section 67 B of Information Technology Act and under Section 77 of the Juvenile Justice (Care and Protection of Children) **B.A. No.2367 of 2024** ``` 3 ``` Act, 2015. The petitioner was arrested on 29.12.2023. 2. The crux of the prosecution case is that; on 28.12.2023, the accused, in furtherance of their common intention, had taken the victim, a girl aged 17 years, to a place at Parathodu Village, Nedumkandam and intoxicated her. When the victim turned unconscious, the first accused committed rape on her. The first accused recorded the entire incident on the mobile phone of the second accused. The victim is a member of the Schedule Caste community. Thus, the accused have committed the above offences. 3. Heard; Sri.Joseph T.John, learned counsel appearing for the petitioner and Sri.C.S. Hrithwik, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He ``` 4 ``` ## **B.A. No.2367 of 2024** has been falsely implicated in the crime. A reading of Annexure-I First Information Report would establish that the overt act is alleged against the first accused. The only allegation against the petitioner is that his mobile phone was used by the first accused to allegedly record the video. In any given case, the petitioner has been languishing in jail since 29.12.2023, which is nearly four months, the investigation in the case is complete and recovery has been effected. Therefore, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. He contended that investigation is in progress. He also stated that if the petitioner is released on bail, there is every likelihood of him intimidating the victim and the witnesses, and also tampering with the evidence. Hence, the application may be dismissed. ``` 5 ``` ## **B.A. No.2367 of 2024** 6. On a scrutiny of the materials on record, it can be deciphered that the only allegation against the petitioner is that the first accused allegedly recorded the video of him raping the victim on the mobile phone of the second accused. Indisputably, the petitioner has been in judicial custody since 29.12.2023, which is four months and recovery has been effected. Even though the petitioner moved a similar application before the Special Court, the same was dismissed by Annexure-III order, on the principle finding that enlarging the petitioner would send a wrong message to the society. 7. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence, until a person is found guilty. Any imprisonment prior to conviction is to be considered as punitive and it would be improper on the **B.A. No.2367 of 2024** ``` 6 ``` part of the Court to refuse bail solely on the ground of former conduct. 8. 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 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. 9.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. **B.A. No.2367 of 2024** ``` 7 ``` 10. 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 unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 11. 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. 12. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering ``` 8 ``` ## **B.A. No.2367 of 2024** the fact that the petitioner has been in judicial custody for the last four months, prima facie on finding that the overt act is alleged against the first accused, the investigation in the case is practically complete, I am of the definite view that the petitioner’s further detention is unnecessary. Taking into consideration the peculiar facts and circumstances of the case, I am inclined to allow the bail application, but subject to stringent conditions. 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 Saturday between 9 a.m. ``` 9 ``` ## **B.A. No.2367 of 2024** and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when directed; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure the victim or 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 enter the Taluk where the victim is residing, other than for the purpose of appearing before the Investigating Officer, without previous permission of the jurisdictional court; (iv) The petitioner shall not commit any offence while he is on bail; ``` 10 ``` ## **B.A. No.2367 of 2024** (v) 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; (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, 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 investigate the ``` 11 ``` ## **B.A. No.2367 of 2024** 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].** **SD/-** rmm/25/4/2024 **C.S.DIAS, JUDGE**