Biju Abraham v. State of Kerala

``` 2025:KER:28881 ``` **==> picture [58 x 58] intentionally omitted <==** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` FRIDAY, THE 4[TH] DAY OF APRIL 2025 / 14TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4517 OF 2025 ``` ``` CRIME NO.590/2025 OF Kottarakkara Police Station, Kollam ``` ``` AGAINST THE ORDER DATED 13.03.2025 IN BAIL APPL. NO.3338 OF 2025 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/SOLE ACCUSED:`** ``` BIJU ABRAHAM AGED 51 YEARS S/O ABRAHAM, ELAVAKKOTTU VEEDU, ERANOOR, PANAVELI P.O, VETTIKKAVALA, KOLLAM, PIN - 691532 ``` ``` BY ADVS. AMAL PARTHASARADHY GIBI.C.GEORGE ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP-NOUSHAD K A`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 4517 OF 2025 2 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:28881` **P.V.KUNHIKRISHNAN, J -------------------------------B.A.No.4517 of 2025 ------------------------------Dated this the 4[th] day of April, 2025** ## **O R D E R** This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the accused in Crime No.590 of 2025 of Kottarakkara Police Station, registered alleging offences punishable under Sections 74 & 75 of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS'). 3. The prosecution case is that, the accused with intention to outrage the modesty of the defacto complainant, on 25.02.2025, at about 3.35 p.m., while the defacto complainant was sitting inside a KSRTC bus parked in the bus stand, the accused came near to her and unzipped his jeans and has showed his nudity to the defacto complainant. Thereafter, he made his male genitals to come in physical contact with the defacto complainant's hand ``` BAIL APPL. NO. 4517 OF 2025 3 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:28881` which was an unwelcome act. Hence, the accused committed the offence. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner was arrested on 26.02.2025. It is also submitted that the petitioner is ready to abide by any conditions, if this Court grants him bail. 6. Public Prosecutor opposed the bail application. But, he submitted that, as per the report received by him from the Investigating Officer, no criminal antecedents is alleged against the petitioner. 7. This Court considered the contention of the petitioner and the Public Prosecutor. The petitioner earlier filed a bail application before this Court as Bail Appl.No.3338/2025. This Court was not inclined to entertain that bail application, because of the seriousness of the case. In that stage counsel for the petitioner want to withdraw the bail application with liberty to move it again. Ordered ``` BAIL APPL. NO. 4517 OF 2025 4 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:28881` accordingly. Hence, this Bail Application is filed. Petitioner is in custody from 26.02.2025. Considering the facts and circumstances of the case and also considering the period of detention, I think, the petitioner can be released on bail after imposing stringent conditions. 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 so as to ensure that the accused has the opportunity of securing fair trial. 9. Moreover, in **Jalaluddin Khan v. Union of** **India [2024 KHC 6431]** , the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider ``` BAIL APPL. NO. 4517 OF 2025 5 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:28881` the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modifcation that the bail can be granted if the conditions in the statute are satisfed. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving ``` BAIL APPL. NO. 4517 OF 2025 6 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:28881` cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) 10. In **Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426]** , also the Hon'ble Supreme Court observed that: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well - settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the ``` BAIL APPL. NO. 4517 OF 2025 7 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:28881` trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception". 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 Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and 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 her from disclosing ``` BAIL APPL. NO. 4517 OF 2025 8 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:28881` such facts to the Court or 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 observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in **Anzar Azeez v. State of Kerala [2025 SCC OnLine KER 1260]** is applicable in this case also. 6. 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. The prosecution and the victim are ``` BAIL APPL. NO. 4517 OF 2025 9 ``` **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:28881 ``` at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. **Sd/P.V.KUNHIKRISHNAN JUDGE** MSA ``` BAIL APPL. NO. 4517 OF 2025 10 ``` **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:28881` ## **`APPENDIX OF BAIL APPL. 4517/2025`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1COPY OF F.I.R. IN CRIME NO 590/2025 OF KOTTARAKKARA POLICE STATION Annexure 2COPY OF ORDER DATED 4-03-2025 PASSED BY THE JFCM-I, KOTTARAKKARA Annexure 3COPY OF ORDER DATED 13-3-2025 PASSED BY THIS HON’BLE COURT ```