BAIL APPL. NO. 5640 OF 2021, IN THE HIGH COURT OF KERALA AT ERNAKULAM

**BAIL APPL. NO. 5640 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943 BAIL APPL. NO. 5640 OF 2021** ## **PETITIONER/ACCUSED :** XXX X BY ADV R.LAIJU ## **RESPONDENTS/COMPLAINANTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 INSPECTOR OF POLICE, IRINJALAKUDA POLICE STATION, THRISSUR DISTRICT-680 125. SRI. E C BINEESH, GP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 5640 OF 2021 2** ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The petitioner is the sole accused in S.C.No.508 of 2020 on the file of the Fast Track Special Court for the Trial of Rape and Protection of Children from Sexual Offenses ( POCSO ) Cases, Kunnamkulam. The petitioner has been charge-sheeted for having committed offences punishable under Section 376(2) (n) & (f) and Section 506 (i) of the IPC. 3. The prosecution allegation is that during the period from December 2018 till August 2019, the petitioner criminally intimidated his teenage daughter and subjected her to rape. When the girl became pregnant, the matter was reported to the Police. The petitioner was arrested and after completion of the investigation, the final report has been laid before the Court. 4. Sri. Laiju Ram Kallida, the learned counsel appearing for the petitioner, submitted that the petitioner was arrested on 01.12.2019 and he has been languishing in custody since then. It is submitted that the allegation that the petitioner has committed rape of his own daughter is false and cooked up version. According to the learned counsel, except in exceptional cases, where there are circumstances suggestive of the likelihood of the petitioner fleeing **BAIL APPL. NO. 5640 OF 2021 3** from justice or thwarting the course of justice by interfering with the evidence, it is the duty of the court to enlarge the accused on bail. 5. The learned Public Prosecutor has vehemently opposed the prayer. He would point out that the contention of the petitioner that he is innocent of the allegation cannot be sustained as the DNA report clearly reveals that the petitioner herein is the biological father of the child delivered by the survivor. He would argue that if the petitioner is enlarged on bail, there is every likelihood that the petitioner may terrorise his daughter and tamper with the evidence. 6. I have considered the submissions and carefully gone through the records. The specific allegation against the petitioner is that he has raped his own daughter. The survivor has delivered a child and records reveal that the custody of the infant was handed over to an orphanage. The main contention of the petitioner is that he has been in custody for a prolonged period. On the other hand, the learned Public Prosecutor contends that if the petitioner is enlarged on bail, he would threaten and intimidate his daughter and the other witnesses and may tamper with the evidence. The question is whether the petitioner is entitled to be enlarged on bail taking note of the period of detention undergone by him and in the facts and circumstances. **BAIL APPL. NO. 5640 OF 2021 4** 7. The principles, which the Court must consider while granting or declining bail, have been stated by the Apex Court in a catena of cases. In **Prahlad Singh Bhati v. NCT, Delhi** [(2001) 4 SCC 280], it was held thus: “The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” ## 8. The very same principles were reiterated in **State of U.P. v. Amarmani Tripathi** [(2005) 8 SCC 21] as well. 9. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the **BAIL APPL. NO. 5640 OF 2021 5** severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for Courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the Court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence, and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a Court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable **BAIL APPL. NO. 5640 OF 2021 6** cause to believe that the accused had committed the crime. It is not relevant at this stage for the Court to examine in detail the evidence on record to come to a conclusive finding. ( **Mahipal v. Rajesh Kumar** (2020) 2 SCC 118). 10. In the case on hand, the alleged act committed by the petitioner is extremely grave and reeks of depravity. His own teenage daughter was subjected to penetrative sexual abuse and there are also material to suggest that she was being criminally intimidated by the petitioner for a prolonged period. The apprehension of the prosecution is that the petitioner may intimidate and terrorise the victim if he is enlarged on bail. As held by the Apex Court in a catena of decisions, the reasonable possibility of the witnesses being tampered with and the possibility of securing the presence of the accused at the time of trial are valid considerations. The mere fact that the applicant has been in custody for some time may not be a reason to allow his application for bail. The Apex Court in **Rajesh Ranjan Yadav** v. **CBI** (AIR 2007 SC 451), has held that while Article 21 is of great importance, a balance must be struck between the right of liberty of the person accused of an offence and the interest of the society. No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The grant of bail due to prolonged incarceration cannot be said to be an absolute rule because the grounds of bail must depend upon the contextual facts and circumstances. Having considered the entire **BAIL APPL. NO. 5640 OF 2021 7** facts, I am not persuaded to enlarge the petitioner on bail. 11. To ascertain the reasonable prospects of expediting the trial, this Court by order dated 27.7.2021, had directed the Registry to obtain a report from the Fast Track Special Court. The Sessions Court has reported that the DNA report has not been received so far from the Forensic Science Laboratory. It is further stated that the case can be disposed of within a period of three months from the date on which the scientific report is received from the Forensic Science Laboratory. 12. In view of the said report, this Court had directed the learned Public Prosecutor to ascertain from the Forensic Science Laboratory, Thiruvananthapuram as to the reasons for delay in forwarding the report of analysis to the Court. 13. The learned Public Prosecutor has made available the copy of the DNA Analysis Report dated 27.11.2020 and also the covering letter dated 15.12.2020 issued by the Director, FSL, Thiruvananthapuram and addressed to the Judicial First Class Magistrate, Irinjalakkuda. It appears that the report was directly forwarded to the learned Magistrate and the same was omitted to be forwarded to the Court of Session, where the case is pending. It is for the Sessions Judge concerned to ascertain the reasons as to why the report of analysis was not promptly forwarded to the Trial Court. Remedial measures **BAIL APPL. NO. 5640 OF 2021 8** shall be taken to prevent such occurrences in future. Be that as it may, there will be a direction to the learned Sessions Judge to call for the report from the learned Magistrate and expedite the trial proceedings and take the matter to its logical conclusion within the time frame given in the report. This bail application is dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** sru