Bail Appl. No.2989 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **Bail Appl..No.2989 OF 2021** **CRIME NO.948/2020 OF Vellikulangara Police Station , Thrissur** ## **PETITIONER/S:** **XXX AGED 56 YEARS, XXX THRISSUR 680684** ## **BY ADV. SRI.N.L.BITTO** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031 2 XXX XXX** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.SYAMJIRAM, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.V.KUNHIKRISHNAN, J -------------------------------B.A.No.2989 of 2021 ------------------------------Dated this the 9[th] day of April, 2021** ## **O R D E R** This is the 4[th] bail application filed by the petitioner, who is the accused in Crime No. 948 of 2020 of Vellikulangara Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 447, 376(2)(f) and 376(3) IPC and Section 4(2) r/w. Section 3(b)(d), Section 6(l) r/w. Section 5(n) and Section 8 r/w. Section 7 of the Protection of Children from Sexual Offences Act (for short 'POCSO Act') is also alleged. 2. The prosecution case is that the petitioner who is the maternal uncle of the victim, who is a minor girl aged 13 years, committed raped on her by trespassing into the ancestral property of the victim on 13.10.2020. The petitioner was arrested on 2.11.2020. 3. Heard the counsel for the petitioner and the **Bail Appl..No.2989 OF 2021** **3** learned Public Prosecutor. 4. The counsel for the petitioner submitted that the petitioner is in custody from 2.11.2020 onwards. Now, the final report is already filed and the petitioner is ready to abide any conditions, if this Court grant him bail. The Public Prosecutor, after getting instructions, submitted that the final report is already filed and the State has no objection in releasing the petitioner on stringent conditions. When this matter came up for consideration on 7.4.2021, this Court passed the following order : “The learned Public Prosecutor will instruct the investigating officer in crime No.948/2021 to issue a notice to the victim in this case informing that the bail application is posted for final hearing on 9.4.21. The Registry will get a report from the lower court about the present stage of the case. The learned Public Prosecutor will get instructions also. Issue a copy of this order to the learned Public Prosecutor today itself. Post on 9.4.2021” 5. The Public Prosecutor submitted that notice is already issued to the victim in this case. There is no appearance for the victim. The I Addl. District and Sessions **Bail Appl..No.2989 OF 2021** **4** ## Judge, Thrissur forwarded a report before this Court, which is extracted hereunder : “With reference to the above, I humbly submit the following before the Hon'ble High Court of Kerala as directed. Crime No.948/2021 of Vellikulangara Police is not a case pending on the file of this court. In crime No.948/2020 of Vellikulangara Police, final report has been filed and the case has been taken into file as SC 2/2021. The accused in the case is an under trial prisoner. Report of forensic examination has not been received so far. The case stands posted to 20.04.2021 for chemical report.” 6. From the above, it is clear that there is no chance for the commencement of the trial in the immediate future. The final report is already filed. The State also submitted that the petitioner can be released on stringent conditions. But, the allegation against the petitioner is very serious. The petitioner is aged 55 and the victim in this case is aged 13. The allegation is that the petitioner sexually abused the victim girl, aged 13. The victim girl is a close relative of the petitioner. Therefore, there can be a direction to the petitioner not to enter the jurisdictional **Bail Appl..No.2989 OF 2021** **5** limit of Vellikulangara Police Station, till the victim in this case is examined by the trial court, during the trial, except with the permission of the jurisdictional court. With this condition, the petitioner can be released on bail. 7. 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 COVID-19 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. Now the 2[nd] wave of the pandemic is spreading. 8. 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 is the rule and refusal is the exception **Bail Appl..No.2989 OF 2021** **6** so as to ensure that the accused has the opportunity of securing fair trial. 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 jurisdictional court as and when required. The petitioner 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/her from disclosing such facts to the Court or **Bail Appl..No.2989 OF 2021** **7** 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 strictly 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. 6. The petitioner shall not enter the jurisdictional limit of Velllikulangara Police Station, Thrissur District till the victim in this case is examined by the trial court, without the permission of the Jurisdictional court. **Bail Appl..No.2989 OF 2021** **8** 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/- **P.V.KUNHIKRISHNAN, JUDGE** SKS