Bail Application No. 5747 of 2024

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946** **BAIL APPL. NO. 5747 OF 2024** **CRIME NO.534/2024 OF Kalady Police Station, Ernakulam AGAINST THE ORDER/JUDGMENT DATED IN CMP NO.539 OF 2024 OF ADDITIONAL DISTRICT & SESSIONS COURT (POCSO), MUVATTUPUZHA PETITIONER/S:** ## **XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX** **BY ADVS. PHILIP T.VARGHESE THOMAS T.VARGHESE ACHU SUBHA ABRAHAM V.T.LITHA K.R.MONISHA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX SR.PP.SMT.NEEMA T.V.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.S.DIAS,J** **-------------------------------------------Bail Application No.5747 of 2024 --------------------------------------------Dated this the 22[nd] day of July, 2024** ## **ORDER** The application is filed under Sec.483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the sole accused in Crime No.534/2024 of the Kalady Police Station, Ernakulam, which is registered against him, for allegedly committing the offences punishable under Section 354A(1)(i)(ii) of the Indian Penal Code (in short, 'IPC') and Section 7 r/w Section 8 of the Protection of Children from Sexual Offences Act (in short,POCSO Act). The petitioner was arrested and remanded to judicial custody on 12.06.2024. 2. The essence of the prosecution case is that: on 11.06.2024, at around 17.30 hours, when the victim, a 15 year old girl, went to the shop of the accused to repair her school bag, the accused, with a sexual intent and by demanding sexual favours, groped the breasts of the victim and outraged her modesty. Even though the victim BAIL APPL. NO. 5747 OF 2024 3 resisted the attack, the accused asked the victim to visit his shop-room again. Thus, the accused has committed the above offences. 3. Heard; Sri.Philip T.Varghese, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime. The victim has made the above accusation on a complete misconception of the fact. The petitioner is a 62 year old man and has been in judicial custody for the last 40 days, the investigation in the case is practically complete and the petitioner does not have any criminal antecedents. Therefore, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is released on bail, there is every likelihood of him intimidating the victim and the witnesses and tampering with the evidence. BAIL APPL. NO. 5747 OF 2024 4 Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the petitioner has been in judicial custody for the last 40 days and the petitioner does not have any criminal antecedents. 6. The prosecution case is that the petitioner had groped the breasts of the victim, outraged her modesty and committed sexual assault on her. The fact remains that the petitioner has been in judicial custody for the last 40 days, the investigation in the case is practically complete and the petitioner does not have any criminal antecedents. 7. In **Dataram Singh v. State of U.P.,** [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a 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. BAIL APPL. NO. 5747 OF 2024 5 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, 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 BAIL APPL. NO. 5747 OF 2024 6 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, particularly considering the fact that the petitioner has been in judicial custody for the last 40 days, the investigation in the case is complete and the final report has been laid, I am of the firm 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: BAIL APPL. NO. 5747 OF 2024 **==> picture [7 x 9] intentionally omitted <==** - 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. 534/2024. - ii. The petitioner shall not directly or indirectly make any inducement or threat to the victim or her witnesses or procure 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 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 the victim and the witnesses are residing till the conclusion of the trial in Crime No.534/2024, other than for the purpose of reporting before the Investigating Officer; BAIL APPL. NO. 5747 OF 2024 8 - v. 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. - vi. Application for deletion/modification of the bail conditions shall be moved and entertained by the court below. - vii. Needless to mention, it would be well within the powers of the Investigating Officer to investigate the 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]. - viii. 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** rkc/22.07.2024 BAIL APPL. NO. 5747 OF 2024 9 ## **APPENDIX OF BAIL APPL. 5747/2024** ## **PETITIONER ANNEXURES** ## **Annexure 1** **CERTIFIED COPY OF THE ORDER IN C.M.P NO. 539/2024 PASSED BY THE HON'BLE ADDITIONAL SPECIAL COURT, (COURT FOR THE TRIAL OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT CASES), MUVATTUPUZHA DATED 02.07.2024**