Nandakumar v. State of Kerala

``` 2025:KER:30176 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 8[TH] DAY OF APRIL 2025 / 18TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4392 OF 2025 ``` ``` CRIME NO.32/2025 OF TRIPUNITHURA EXCISE RANGE OFFICE, ERNAKULAM AGAINST THE ORDER DATED 28.01.2025 IN CRMP NO.222 OF 2025 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` NANDAKUMAR AGED 47 YEARS, S/O PURUSHOTHAMAN UNNITHAN ABHEDASREE HOUSE, PAVANKULANGARA, NADAMA ERNAKULAM ., PIN – 682 301. ``` ``` BY ADVS. SUJESH MENON V.B. ANANTH KRISHNA K.S. ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. ``` ``` BY ADV HRITHWIK C S, SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:30176 ``` **==> picture [58 x 58] intentionally omitted <==** B.A No.4392 of 2025 2 **P.V.KUNHIKRISHNAN, J -------------------------------B.A.No.4392 of 2025** ## **------------------------------Dated this the 8[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.32 of 2025 of Hill Palace Police Station, Ernakulam. The above case is registered against the petitioner alleging offences punishable under Sections 376, 376AB, 376(2)(n), 354 and 354-B of the Indian Penal Code, 1860 (for short ‘IPC’) and also under Sections 4, 3(d), 6, 5l, 5m, 5p, 8, 7, 10, 9l, 9m and 9p of Protection of Children from Sexual Offences Act (for short ‘POCSO Act’). 3. The case is registered based on a complaint filed by the step-daughter of the petitioner. She is now studying for 1[st] year B.Com. at Rajagiri College, **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30176 ``` B.A No.4392 of 2025 3 Kakkanad. According to her, the step-father sexually abused her, when she was studying from class 5 to 8. That means, it happened in the year 2015-2018. Now, she filed the complaint in the year 2025. The petitioner was arrested on 15.01.2025. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. Since, the offence under Section 376AB of IPC is also alleged, this Court directed the Public Prosecutor to give notice to the victim about the pendency of this bail application. The Public Prosecutor submitted that notice is served. The victim appeared in person before this Court and opposed the bail application. 6. This Court carefully perused the First Information Statement (FIS) given by the victim. A perusal of the same would show that her grievance is that in June 2015 the petitioner sexually abused her. Thereafter, in January 2016, the petitioner sexually abused her. It is the **==> picture [58 x 58] intentionally omitted <==** ## `2025:KER:30176` ## B.A No.4392 of 2025 4 case of the victim that, the same continued on several occasions. It is important to note that, in FIS it is stated that she has got a relationship with one Alan. The petitioner was not happy with that relationship. The petitioner and her grandfather went to his house and took the laptop of that Alan, which contains some photographs. 7. Counsel appearing for the petitioner takes me through a diary which was written by the defacto complainant. This Court perused the same. I do not want to make any observation about the same. Considering the facts and circumstances of the case and also considering the fact that the petitioner is in custody from 15.01.2025, 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, **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30176 ``` B.A No.4392 of 2025 5 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 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 ``` 2025:KER:30176 ``` **==> picture [58 x 58] intentionally omitted <==** B.A No.4392 of 2025 6 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) ## 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 trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".” **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30176 ``` B.A No.4392 of 2025 7 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 ``` 2025:KER:30176 ``` **==> picture [58 x 58] intentionally omitted <==** B.A No.4392 of 2025 8 dissuade him/her 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. 6. If any of the above conditions are violated by the petitioner, the **==> picture [58 x 58] intentionally omitted <==** ``` 2025:KER:30176 ``` B.A No.4392 of 2025 9 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** AMR