Bipul Sarkar v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 6067 OF 2024 ``` ``` CRIME NO.346/2024 OF MANNAR POLICE STATION, ALAPPUZHA ``` ``` PETITIONER: ``` ``` BIPUL SARKAR AGED 24 YEARS S/O BABLU SARKAR, HAVING PERMANENT RESIDENCE AT SHUKDEBPUR UTHARA PATHAN, DAKSHINA DINAJPUR, GANGARAMPURI, WEST BENGAL, PIN – 733124 ``` ``` BY ADV GODWIN JOSEPH ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (THROUGH STATION HOUSE OFFICER, MANNAR POLICE STATION, ALAPPUZHA DISTRICT), PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.6067/2024_ _-:2:-_ _Dated this the 1[st] day of August, 2024_ ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.346/2024 of the Mannar Police Station, Alappuzha, which is registered against him for allegedly committing the offences punishable under Sections 354, 354(A)(1)(i), 354B & 506 of the Indian Penal Code, 1860, and Sections 8 read with Section 7 & 10 read with Section 9(k)(m) & 12 read with Section 11(iv) of the Protection of Children from Sexual Offences Act, 2012. The petitioner was arrested and remanded to judicial custody on 11.04.2024. 2. The essence of the prosecution case is that: on 10.04.2024, at around 13.30 hours, while the victim, a 10-year-old girl, who is stated to be deaf and dumb, was viewing her mobile phone, the accused entered her bedroom, hugged and kissed her, and with a sexual _B.A.No.6067/2024_ _-:3:-_ intent attempted to molest her by removing her innerwear. Thus, the accused has committed the offences of sexual assault and outraging the modesty of the victim. 3. Heard; Sri. Godwin Joseph, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The crime has been registered due to the animosity between the petitioner and the victim’s family. The victim has lodged the complaint due to a misconception of fact. Even going by the allegations in the First Information Report, the petitioner only attempted to molest the victim. In any given case, the petitioner has been in judicial custody for the last 112 days, the investigation in the case is complete, and the final report has been laid on _B.A.No.6067/2024_ _-:4:-_ 01.07.2024. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has committed a serious offence by outraging the modesty of the victim, who is a deaf and dumb girl. Furthermore, the petitioner is a native of West Bengal. If the petitioner is let off on bail, there is every likelihood of him fleeing from justice. He may also tamper with the evidence and intimidate the victim and her witnesses. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that he entered the house of the victim, kissed her, and after that, he attempted to molest her. Accordingly, he has outraged the modesty of the victim and committed sexual assault on her. On a perusal of _B.A.No.6067/2024_ _-:5:-_ the materials, prima facie I find that there are materials to show the petitioner's involvement in the crime. However, that is a matter to be ultimately decided at the time of trial. The fact remains that the petitioner has been in judicial custody for the last 112 days, the investigation in the case is complete, the final report has been laid, 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. 8. **In State of Kerala v. Raneef** [(2011) 1 SCC 784], the Honourable Supreme Court has declared that _B.A.No.6067/2024_ _-:6:-_ 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 in judicial custody. The right to bail cannot be denied _B.A.No.6067/2024_ _-:7:-_ merely due to the sentiments of the society. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, on and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 112 days, the investigation in the case is complete and the final report has been laid, and 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: _B.A.No.6067/2024_ _-:8:-_ - (i) The petitioner shall appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 346/2024. - (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; - (v) The petitioner shall furnish his present and _B.A.No.6067/2024_ _-:9:-_ permanent addresses and also his mobile phone number to the Investigating Officer and also file a memo to the effect before the jurisdictional court. - (vi) The petitioner shall not enter the police station limits of the Mannar Police Station till the conclusion of the trial in the above crime, other than for the purpose of reporting to the Investigating Officer; - (vii)The petitioner shall not leave the territorial jurisdiction of the Court of Session, Alappuzha, without the previous permission of the jurisdictional court; - (viii) 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. - (ix) Applications for deletion/modification of the bail conditions shall be moved and entertained by _B.A.No.6067/2024_ _-:10:-_ ## the court below. - (x) 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]. - (xi) 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** DST/01.08.24 //True copy// P.A. To Judge