Johny K @ John, Aliekutty Johny, Jomish Joby, and Jishnu P.K. v. State of Kerala

B.A.No. 4852 of 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942 Bail Appl..No.4852 OF 2020** **CRIME NO.282/2020 OF Rajapuram Police Station , Kasargod** ## **PETITIONER/S:** |**1**|**JOHNY K @ JOHN**| |---|---| ||**AGED 56 YEARS**| ||**S/O., KUTTAPPAN,**| ||**ORITHAYIL H KOLICHAL P.O,**| ||**VELLARIKUNDU TALUK-671 532**| |**2**|**ALIEKUTTY JOHNY**| ||**AGED 53 YEARS**| ||**W/O. JOHNY.K,**| ||**ORITHAYIL HOUSE,**| ||**KOLICHAL, VELLARIKUND**| |**3**|**JOMISH JOBY**| ||**AGED 24 YEARS**| ||**S/O. JOBY, KEECHERY,**| ||**PRANTHARKAVU, KOLICHAL,**| ||**VELLARIKUNDU**| |**4**|**JISHNU P.K**| ||**AGED 16 YEARS**| ||**S/O. ASOKAN.P,**| ||**KUNNUMMAL HOUSE,**| ||**PRANTHARKAVU,**| ||**KOLICHAL**| ||**PIN - 671532**| ||**BY ADVS.**| ||**SRI.R.KRISHNAKUMAR (CHERTHALA)**| ||**R.KRISHNAKUMAR [CHERTHALA]**| B.A.No. 4852 of 2020 2 ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 4852 of 2020 3 ## **P.V.KUNHIKRISHNAN, J. ================== B.A.No. 4852 of 2020 ================== Dated this the 17[th] day of August, 2020** ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioners are accused No. 2 to 5 in crime No. 282 of 2020 of Rajapuram Police Station, Kasaragod District. The above case is registered against the petitioner and others alleging offences punishable under Sections 363, 354A(i), 354(D), and Section 7 r/w 8, and 11(iv) r/w 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). It is submitted by the learned Public Prosecutor that the offences under Section 354A(i) and the offence under the POCSO Act are deleted subsequently. 3. The prosecution case is that, on 17.07.2020 at B.A.No. 4852 of 2020 4 about 4.30 p.m. the accused in this case took the victim girl to the house of the 1[st] petitioner. Subsequently, when the parents of the victim contacted the 1[st] petitioner, the victim went along with her parents. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that, the petitioners 1 & 2 are the parents of the 1[st] accused. The petitioners 3 & 4 are the friends of the 1[st] accused. It is the case of the counsel that, the 1[st] accused was in love with the victim girl. The victim at the time of the alleged incident was only short of three months to attain majority . The counsel also submitted that the petitioners are parents and friends of the 1[st] accused. They were not even aware that the victim is a minor at the time of alleged. There is no criminal intention on the part of the petitioners. The counsel submitted that, immediately when the parents of the victim contacted the 1[St] petitioner, the victim was allowed to go with her parents. The learned B.A.No. 4852 of 2020 5 counsel for the petitioners also submitted that, they are ready to abide any conditions, if this Court grants them bail. 6. The learned Public Prosecutor even though opposed the bail application, submitted that, if this Court is granting bail stringent conditions may be imposed. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. Admittedly, the petitioners are the parents and friends of the 1[st] accused. It is an admitted fact that the 1[st] accused and victim were in love. It is true that the victim was only short of three months to attain majority at the time of alleged incident. The 1[st] accused in this case is already arrested. Considering the entire facts and circumstances of this case, this bail application can be allowed on stringent conditions. 8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme B.A.No. 4852 of 2020 6 Court in _**Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)**_ and a Full Bench of this Court in _**W.P(C)No.9400 of 2020**_ issued various salutary directions for minimizing the number of inmates inside prisons. 9. 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. 10. 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. The petitioners shall appear before the_ B.A.No. 4852 of 2020 7 _Investigating Officer within ten days from today and shall undergo interrogation;_ _2. After interrogation, if the Investigating Officer proposes to arrest the petitioners, they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) each with two solvent sureties each for the like sum to the satisfaction of the officer concerned;_ _3. The petitioners shall appear before the Investigating Officer for interrogation as and when required. The petitioners 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 him from disclosing such facts to the Court or to any police officer;_ _4. The petitioners shall not leave India without permission of the Court;_ _5. The petitioners shall not commit an_ B.A.No. 4852 of 2020 8 _offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected;_ _6. The petitioners shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic._ If any of the above conditions are violated by the petitioners, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. **(Sd/-) P.V.KUNHIKRISHNAN, JUDGE** LU