Appu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 BAIL APPL. NO. 5528 OF 2024 CRIME NO.221/2024 OF ARUVIKKARA POLICE STATION, ``` ``` THIRUVANANTHAPURAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED 21.06.2024 IN CRMP NO.1348 OF 2024 OF SPECIAL COURT UNDER POCSO ACT, THIRUVANANTHAPURAM PETITIONER/ACCUSED: ``` ``` APPU, AGED 19 YEARS S/O. MANU,SASI VILASAM, WINNERS NAGAR, VAZHAYILA, PEROORKKADA VILLAGE, THIRUVANANTHAPURAM, PIN - 695005 ``` ``` BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SRI. C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.5528 of 2024** ``` 2 ``` ## **Dated this the 18[th ] day of July, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.221/2024 of the Aruvikkara Police Station, Thiruvananthapuram, registered against him for allegedly committing the offences punishable under Sections 376(2)(n), 354, 354(B), 452, 323, 506(i) of the Indian Penal Code (IPC) and Sections 6(1) r/w 5(l), 12 r/w 11(v) of the Protection of Children from Sexual Offences Act (in short, ‘Act’). The petitioner was arrested and remanded to judicial custody on 08.03.2024. 2. The crux of the prosecution case is that; the accused abused the victim, a 16 year old girl, who was ``` 3 ``` ## **B.A. No.5528 of 2024** studying in 9[th] standard. During the course of the counselling of the victim, she narrated that that the accused had earlier committed sexual assault on her and a case was registered against him and he was arrested. Subsequently, after he was released, the accused contacted the victim through her friends and sent message to her on her mobile phone. On 29.03.2024, at around 13.30 hours, the accused went to the grandmother’s house of the victim, under the pretext of giving her a gift, and committed rape on the victim. He recorded the entire incident on his mobile phone. Thereafter, he used to call the victim and blackmail her by saying that he would upload her videos on the social media. Again, in the month of April, 2023, the accused attempted to commit rape on the victim on a public pathway, but she resisted the same. Then, the accused brutally attacked the victim and forced her to indulge in **B.A. No.5528 of 2024** ``` 4 ``` oral sex. On 19.05.2023, the accused trespassed into the house of the victim and raped her and again threatened that he would upload her nude photographs on the social media. Thus, the accused has committed the above offences. 3. Heard; Sri. K.K. Dheerendrakrishnan, the 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 innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate that the petitioner has committed the above offences. In fact, the petitioner and the victim have been in love for a long period. It was the victim who invited the petitioner to her residence and they made love on the consent of the victim. In any given case, the petitioner is ``` 5 ``` ## **B.A. No.5528 of 2024** a 19 year old boy, and has been in judicial custody for the last 132 days, the investigation in the case is complete, medical examinations have been conducted and the final report has been laid. Furthermore, the petitioner does not have any criminal antecedents other than an earlier crime registered in connection with the relationship between the petitioner and the victim. Hence, the petitioner may be enlarged on bail. 5. The learned Public Prosecutor opposed the application. He submitted that 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 tampering with evidence, and also committing a similar offence. Therefore, the application may be dismissed. 6. The prosecution allegation is that, the petitioner had committed rape and penetrative sexual assault on ``` 6 ``` ## **B.A. No.5528 of 2024** the victim on several occasions and also outraged her modesty. It is also alleged that the petitioner had assaulted the victim and caused hurt to her. The materials also show that the petitioner had earlier committed a similar incident and Crime No. 613/2022 of the very same police station was registered against him. The said crime is pending trial before the Juvenile Justice Board as S.T. No. 111/2023. During the pendency of the case, the present incident has occurred. Going by the nature of accusations, the prosecution allegation seems to be justifiable. Nonetheless, these are all matters to be ultimately decided at the time of trial. The fact remains that the petitioner has been in judicial custody for the last 132 days, the investigation in the case is complete, the medical examinations have been conducted and the final report has been laid. 7. In **Dataram Singh v. State of U.P** ., [(2018) 3 **B.A. No.5528 of 2024** ``` 7 ``` 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. 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, **B.A. No.5528 of 2024** ``` 8 ``` 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. 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, taking into consideration the peculiar facts and circumstances of the case, especially since the petitioner is only aged 19 years, the petitioner has been in judicial custody for the last 132 days, the ``` 9 ``` ## **B.A. No.5528 of 2024** investigation in the case is complete, the medical examinations have been conducted and the final report has been laid, I am of the view that the petitioner’s further detention is unnecessary. Hence, 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 alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 221/2024. ``` 10 ``` ## **B.A. No.5528 of 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; (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 ``` 11 ``` ## **B.A. No.5528 of 2024** the victim and the witnesses are residing till the conclusion of the trial in Crime No.221/2024, other than for the purpose of reporting before 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 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 ``` 12 ``` ## **B.A. No.5528 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].** (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** rmm/18/7/2024