Basil Baby 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. 4883 OF 2024 ``` ``` CRIME NO.357/2024 OF Wandoor Police Station, Malappuram ``` ``` ----------------- ``` ## **`PETITIONER/ACCUSED :-`** ``` BASIL BABY, AGED 23 YEARS S/O. BABY.K.J, KIDANGAYATH HOUSE, VAPULASSERY POST, MEKKAVU, NEDUMBASSERY, ANGAMALI, ERNAKULAM DIST., PIN - 683 572 ``` ``` BY ADVS. M.SHAJU PURUSHOTHAMAN K.S.RAJESH ``` ## **`RESPONDENT/COMPLAINANT :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 4883 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 18th day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.357/2024 of the Wandoor Police Station, Malappuram, which is registered against him, for allegedly committing the offences punishable under Sections 363, 376(3) and 328 of the Indian Penal Code and Section 3(a) r/w Section 4(2) and Section 11(iv) r/w Section 12 of the Protection of Children from Sexual Offences Act, 2012 and Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The petitioner was arrested and remanded to judicial custody on 18.04.2024. 2. The gist of the prosecution case is that; on 16.04.2024, at around 10:00 hrs., the accused kidnapped the victim, a 15 year old girl, and took her on his motorcycle to Ernakulam, and from there to Bangalore by train and he made her to consume alcohol, and committed ``` BAIL APPL. NO. 4883 OF 2024 ``` ``` -: 3 :- ``` rape, penetrative sexual assault and outraged the modest of the victim. Thus, the accused has committed the above offences. 3. Heard; Sri.Shaju Purushothaman M., the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. In fact, the petitioner and the victim were in love for over a year. The relationship between the parties was consensual. The petitioner does not have any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last 91 days, the investigation in the case is not complete and the final report has not been laid. Therefore, the petitioner is entitled to be released on statutory bail. Hence, the application may be allowed. ``` BAIL APPL. NO. 4883 OF 2024 ``` ``` -: 4 :- ``` 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. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the petitioner has been in judicial custody for the last 91 days, the investigation in the case is not complete and the final report has not been laid. 6. The prosecution case is that; the petitioner had committed rape and penetrative sexual assault on the victim and outraged her modesty. Indisputably, the petitioner was arrested and remanded to judicial custody on 18.04.2024. It is conceded that the investigation in the case is not complete and the final report has not been laid. 7. Subsections (1) and (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows :- ``` BAIL APPL. NO. 4883 OF 2024 ``` ``` -: 5 :- ``` 167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] ``` BAIL APPL. NO. 4883 OF 2024 ``` ``` -: 6 :- ``` 8. A three-Judge Bench of the Honourable Supreme Court in **Uday Mohanlal Acharya** v. **State of Maharashtra** [(2001) 5 SCC 453], reiterated the legal proposition in **Sanjay Dutt** v. **State through C.B.I., Bombay** (supra). In paragraph 13 (3) it was opined thus: "13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added) 9. In the instant case, as the petitioner has been in judicial custody for the last 91 days, the investigation in the case is not complete and the final report has not been laid, I am satisfied that the petitioner is entitled to be released on statutory bail since it is his indefeasible right under Section 167(2) of the Cr.P.C. Hence, I allow the application. ``` BAIL APPL. NO. 4883 OF 2024 ``` ``` -: 7 :- ``` 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.357/2024. - (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure 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 ``` BAIL APPL. NO. 4883 OF 2024 ``` ``` -: 8 :- ``` 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.357/2024, 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 filed and entertained before 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 Court in **Sushila Aggarwal** v. **State (NCT of Delhi) and another** [2020 (1) KHC 663]. ``` BAIL APPL. NO. 4883 OF 2024 ``` ``` -: 9 :- ``` (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** Jvt/18.7.2024