Khim Bahadur B. K alias Rahul v. State of Kerala

B.A.No.5002 of 2025 1 2025:KER:30686 **==> picture [58 x 58] intentionally omitted <==** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 9[TH] DAY OF APRIL 2025 / 19TH CHAITHRA, 1947** **BAIL APPL. NO. 5002 OF 2025** **CRIME NO.182/2025 OF Kalamassery Police Station, Ernakulam** ## **PETITIONER(S)/ACCUSED:** **KHIM BAHADUR B. K @ RAHUL AGED 24 YEARS S/O SANTA BAHADUR KAMI, BHERI GANGA, SURKHET, NEPAL, PIN - 217001** **BY ADVS. REJI R. YESMA D. ELAVANTHARA SHYMA K.P.** ## **RESPONDENT(S):** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** - **2 SUB INSPECTOR OF POLICE KALAMASSERY POLICE STATION, ERNAKULAM DISTRICT, PIN - 683104** - **3 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX** B.A.No.5002 of 2025 2 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:30686 **BY ADV. SR PP-HRITHWIK C S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No.5002 of 2025 3 2025:KER:30686 **==> picture [58 x 58] intentionally omitted <==** ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.5002 of 2025 ------------------------------- Dated this the 09th day of April, 2025 ## **O R D E R** This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the sole accused in Crime No.182 of 2025 of Kalamassery Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 137(1)(b), 144, 96, 74 & 64(1) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS') and Sections 4 r/w 3(a), 6 r/w 5(j)(ii) and Section 8 r/w 7 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). 3. The prosecution case is that the accused and the victim became friends through facebook. It is alleged that the accused gained her trust and confidence by pretending to be in love. It is also alleged that the accused took the victim to B.A.No.5002 of 2025 4 2025:KER:30686 **==> picture [58 x 58] intentionally omitted <==** a lodge in Ernakulam and had sex with her and impregnated her. Hence it is alleged that the accused committed the above said offences. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. Counsel for the petitioner submitted that the petitioner and the victim were in love relationship. Now, the matter is settled. The victim filed an affidavit stating that she has no objection in granting bail to the petitioner. It is also submitted that they decided to marry each other. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner is from Nepal, and if he is released on bail, he will not be available for trial. At this stage, the counsel appearing for the petitioner submitted the petitioner is ready to offer local sureties from the State of Kerala. The same is recorded. 5. Simply because the matter is settled, this Court cannot grant bail to the petitioner. But the fact remains that the petitioner is in custody from 27.02.2025. Moreover, the petitioner is aged only 24 years, and the victim is now B.A.No.5002 of 2025 5 **==> picture [58 x 58] intentionally omitted <==** 2025:KER:30686 attained 18 years. Considering the facts and circumstances of the case, I think the petitioner can be released on bail after imposing stringent conditions. 6. 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. 7. 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 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 B.A.No.5002 of 2025 6 2025:KER:30686 **==> picture [58 x 58] intentionally omitted <==** 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 modification that the bail can be granted if the conditions in the statute are satisfied. 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 cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) ## 8. 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 B.A.No.5002 of 2025 7 2025:KER:30686 **==> picture [58 x 58] intentionally omitted <==** 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 trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".” 9. 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.2,00,000/- (Rupees Two lakhs only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. The submission of the petitioner that he will offer local sureties from the State of Kerala is recorded. 2. The petitioner shall appear before the Investigating Officer for interrogation as and B.A.No.5002 of 2025 8 2025:KER:30686 **==> picture [58 x 58] intentionally omitted <==** 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 him from disclosing 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. B.A.No.5002 of 2025 9 2025:KER:30686 **==> picture [58 x 58] intentionally omitted <==** 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 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** DM