Pushpangathan alias Ayyapan alias Swamy v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 12[TH] DAY OF JUNE 2024 / 22ND JYAISHTA, 1946 BAIL APPL. NO. 4061 OF 2024** **CRIME NO.145/2024 OF PATTAMBI POLICE STATION, PALAKKAD** **PETITIONER/ACCUSED:** **PUSHPANGATHAN@AYYAPAN@SWAMY, S/O LATE RAMAN, AGED 75 YEARS ULLATTIL VEEDU, PERUMUDIYOOR (P.O), MUTHUMALA VILLAGE,PALAKKAD, PIN - 679303** ## **BY ADV NIMAL JOSEPH** **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031** **SR.PUBLIC PROSECUTOR SMT. SEETHA S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **12.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **B.A. No.4061 of 2024** **2** ## **Dated this the 12[th] day of June, 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.145/2024 of the Pattambi Police Station, Palakkad, registered against the him for allegedly committing the offences punishable under Sections 354A(1)(i) (ii), 354D(1)(i) of the Indian Penal Code (in short IPC) and Section 8 r/w Sections 7 and 10 r/w Section 9(1) of the POCSO Act. The petitioner was arrested on 6.3.2024. 2. The gravamen of the prosecution case is that; in August, 2023 while the victim (a girl aged 15 years), was studying in the verandha of her house, the accused , who is a friend of victim's grandfather, caught hold on **3** ## **B.A. No.4061 of 2024** her private parts with the intention to commit sexual assault. Thus, the accused has committed the above offences. 3. Heard; Sri.Nimal Joseph, learned counsel appearing for the petitioner and Smt.Seetha S, the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. The petitioner is 75 years of age. The petitioner has not done any of the act as alleged by the prosecution. In fact the victim is like a granddaughter to the petitioner. In any given case, the petitioner has been in judicial custody for the last 100 days, the investigation in the case is complete and the final report has been laid on 16.4.2024. All the forensic examinations have been completed. **B.A. No.4061 of 2024** **4** Therefore,the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate that the petitioner's involvement in the above crime. In fact, the petitioner repeatedly committed sexual assault on the victim. The victim has given a detailed statement to the jurisdictional Magistrate narrating each incident. If the petitioner is released on bail, there is likelihood of him intimidating the victim and the witnesses and tampering with the evidence. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, in August, 2023, the accused with an intention to commit sexual assault, touched on the private parts of the victim and committed the above offences. The **5** ## **B.A. No.4061 of 2024** victim has given a statement to the jurisdictional Magistrate narrating about the said incident. Even though the allegations attributed against the petitioner is serious in nature, the fact remains that the petitioner has been in judicial custody for the last 100 days, the investigation in the case is complete and the final report has been laid on 16.4.2024. The materials placed on record would show that the petitioner is 75 years of age, he is suffering from various physical ailments and is under constant treatment. Since the investigation is complete and the final report has been laid, I am inclined to allow the application, but subject to stringent conditions. 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 **6** ## **B.A. No.4061 of 2024** 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 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. 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 merely due to the sentiments of the society. **7** ## **B.A. No.4061 of 2024** 10. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 100 days, the petitioner is aged 75 years, the investigation in the case is complete and the final report has been laid, 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.50,000/- (Rupees fifty thousand 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: - (i) The petitioner shall appear before the Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial **8** ## **B.A. No.4061 of 2024** in Crime No.145/2024. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat to the victim or any other witnesses in the case or any other 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; **9** ## **B.A. No.4061 of 2024** (v) The petitioner shall not leave the territorial jurisdiction of the court of Session, Palakkad without the previous permission of the jurisdictional court. (vi) 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. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) 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 **10** ## **B.A. No.4061 of 2024** 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].** rmm/12/6/2024 **C.S.DIAS, JUDGE**