Bail Application No. 6091 of 2024 (Crime No. 540/2024, Venjaramoodu PS) v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 6091 OF 2024 ``` ``` CRIME NO.540/2024 OF VENJARAMOODU POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER DATED IN SC NO.1176 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN),THIRUVANANTHAPURAM ``` ## **`PETITIONER/ACCUSED:`** ``` XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` BY ADVS. ARUN KRISHNA DHAN ARJUN SREEDHAR T.K.SANDEEP ALEX ABRAHAM SWETHA R. HARIKRISHNAN P.B. GOWRI MENON ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SMT SEETHA S SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.6091 of 2024** **`2`** **Dated this the 2[nd ] day of August, 2024** ## **O R D E R** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the sole accused in Crime No.540/2024 of the Venjaramoodu Police Station, Thiruvananthapuram, which is registered against him for allegedly committing the offences punishable under Sections 8 r/w Section 7, and 10 r/w Section 9 (l)(m)(n) of the Protection of Children from Sexual Offences Act (in short, ‘the POCSO Act’). The petitioner was arrested and remanded to judicial custody on 14.04.2024. 2. The prosecution case, in brief, is that; between May and December 2023, the accused, who is the cousin brother of the victim, a 9 year old boy, had visited the victim’s house and slept with him in the same bed room. Then, the accused, with sexual intent, stripped the victim, and placed his genitals on the buttocks of the **B.A. No.6091 of 2024** **`3`** victim, and also induced him to hold his genitals. Subsequently, the mother of the victim happened to see the incident, to whom the accused confessed of doing the acts. Thus, the accused has committed the above offences. 3. Heard; Sri. T.K. Sandeep, the learned counsel appearing for the petitioner and Smt.Seetha. S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime out of the victim’s mother’s animosity towards the petitioner. The fact that the alleged incident occurred between May and December 2023 and Annexure A1 FIR was registered only on 14.04.2024, proves the falsity and frivolity in the crime. The petitioner is a 25 year old youth who is the sole breadwinner of his family. In any given case, the petitioner has been in judicial custody for the last 110 **B.A. No.6091 of 2024** **`4`** days, the investigation in the case is complete, the medical examinations have been completed, and the final report has been laid on 11.05.2024. The petitioner does not have any criminal antecedents. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has committed a heinous crime very by committing aggravated sexual assault on the victim, who is none other than his own cousin brother. If the petitioner is enlarged on bail, there is every likelihood of him intimidating the victim and the witnesses and tampering with evidence, which would be prejudicial to the prosecution. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, between May and December 2023, he had committed aggravated sexual assault on the victim, who is none other than his own cousin brother. The petitioner **B.A. No.6091 of 2024** **`5`** claims total innocence of the accusations levelled against him. However, in view of Section 29 of the POCSO Act, the presumption of innocence cannot be drawn in favour of the petitioner. Whether or not the petitioner has committed the offences is a matter to be investigated and ultimately decided at the time of trial. The fact remains that the petitioner has been in judicial custody for the last 110 days, the investigation in the case is complete, the final report has been laid on 11.05.2024, 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 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. **B.A. No.6091 of 2024** **`6`** 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 strong case has to be made out for continuing a person **B.A. No.6091 of 2024** **`7`** 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 on considering the fact that the petitioner has been in judicial custody for the last 110 days, the investigation in the case is complete, the final report has been laid, and further that the petitioner does not have any criminal antecedents, 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: - (i) The petitioner shall appear before the **B.A. No.6091 of 2024** **`8`** Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.540/2024. (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; **B.A. No.6091 of 2024** **`9`** (v) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Ernakulam, without the previous permission of the jurisdictional court; (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 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 **B.A. No.6091 of 2024** **`10`** 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** mtk/02.08.24