Rajendraparasad alias Manian v. State of Kerala (B.A No.2301 of 2020)

B.A NO.2301 OF 2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY,THE 29TH DAY OF APRIL, 2020/9TH VAISAKHA, 1942** **B.A NO.2301 OF 2020** **IN [Crime No: 132/2020 of Kilimanoor Police Station, Thiruvananthapuram (Dist)]** **Petitioner :- Accused** **Rajendraparasad alias Manian Aged :- 76 years, S/o. Vamadevan Ulloorkonam, Kunnuvila veedu, Ponganadu, Kilimanoor Village, Thiruvananthapuram BY ADV.AJITH KRISHNAN** **Respondent :- Complainant** **State of Kerala** **Represented by the Public Prosecutor, High Court of Kerala, Ernakulam.** **BY PUBLIC PROSECUTOR SRI.AJITH MURALI** **THIS B.A HAVING COME UP FOR ADMISSION ON 29.04.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A NO.2301 OF 2020 2 ## **ORDER** This is an application filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner is the accused in Crime No.132/2020 of the Kilimanoor Police Station. The petitioner is alleged to have committed the offences punishable under Sections 376(l), 376(2)(l) of the Indian Penal Code and Section 4 r/w 3(a), 8 r/w 7 of the Protection of Children from Sexual Offences Act, 2012. 3. The prosecution case, in brief, is that: the petitioner committed penetrative sexual assault and raped the victim, a minor, 16 year old mentally retarded girl. Thus, the petitioner has committed the above offences. 4. The petitioner was arrested on 11.02.2020. His application for bail was dismissed by the the Additional Sessions Judge for Trial of Cases Relating to Atrocities and Sexual Violence Against Women and Children, B.A NO.2301 OF 2020 3 Thiruvananthapuram, by order 11.03.2020 in Crl.M.P.No.458 of 2020. 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor via video-conferencing. 6. The learned counsel for the petitioner argued that the petitioner is a 76 years old man. He is in incarceration for the last 80 days. The investigation in the case is practically completed. The petitioner's continued detention is unnecessary. Hence, the petitioner may be enlarged on bail. 7. The learned Public Prosecutor opposed the application. However, the learned Public Prosecutor conceded to the fact that investigation in the case is practically complete. 8. The Hon'ble Supreme Court in **Sanjay Chandra v. CBI** [2012 (1) SCC 40] held as follows: "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that 4 B.A NO.2301 OF 2020 refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution". 9. Recently, the Honourable Supreme Court in **Nikesh Tarachand Shah v. Union of India** [2018 (11) SCC 1] after going back to the days of the Magna Carta and after referring to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] has reiterated the same view in **Sanjay Chandra v. CBI (supra).** Again, in P **.Chidamabram v. Directorate of Enforcement** [(2019) SCC Online SC 1549] the above proposition has been fortified. 10. After the outbreak of the Novel Corona Virus (COVID -19) pandemic in the country, the Hon'ble Supreme Court in In Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition (C) No.1 of 2020) observed that the issue of overcrowding of prisons is a matter of serious concern. The State Governments were directed to take adequate measures to de-congest the prisons. Following the above direction, the Home Department, Government of Kerala has promulgated order dated 25.03.2020, inter alia, directing the release of 5 B.A NO.2301 OF 2020 under-trial prisoners alleged to have committed offences punishable with punishment for seven years or less. Later, a Full Bench of this Court by order dated 25.03.20202 in W.P.(C) No.9400 of 2020 (Suo Motu), has issued directions to decongest the prisons in the State, keeping in mind the proposition that bail is the rule and jail is the exception. 11. On a cumulative appreciation of the facts and circumstances of the case, especially considering the fact that the petitioner has been in incarceration for the last 80 days; that the investigation in the case is practically complete; that the petitioner's continued detention is unnecessary; the legal proposition laid down by the Honourable Supreme Court in the afore cited decisions and the directions of the Hon'ble Supreme Court and a Full Bench of this Court to decongest prisons in view of Covid-19 pandemic, I am inclined to allow this bail application. 12. In the result this bail application is allowed, on the following conditions:- B.A NO.2301 OF 2020 6 (i) Due to the present National lock-down and the closure of Courts, the Jail Superintendent, where the petitioner is incarcerated, is directed to release the petitioner on him furnishing his permanent address and phone number and the addresses and phone numbers of his proposed sureties/immediate relatives. The petitioner shall also file an undertaking to the Jail Superintendent that he and his sureties will execute the bail bond before the jurisdictional Court within one week of its re-opening. The Jail Superintendent after ensuring the compliance of the above conditions, shall release the petitioner to the Station House Officer of the Police Station where the crime has been registered, who shall after noting down the above details, release the petitioner. The Investigating Officer shall keep a close vigil on the whereabouts of the petitioner. (ii) The petitioner shall within one week from the re-opening of the jurisdictional Court, if not B.A NO.2301 OF 2020 7 already re-opened, execute a bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court. (iii) The petitioner shall appear before the Investigating Officer on all Saturdays between 10.00 a.m and 11 a.m till final report is filed. (iv) The petitioner shall not enter the jurisdictional limits of the Kilimanoor Police Station, except to comply with 'condition No.iii', till the final report is filed. (v) The petitioner shall not tamper with the evidence or influence the witnesses in the case, in any manner, whatsoever. (vi) The petitioner shall not commit any offence while on bail. B.A NO.2301 OF 2020 **==> picture [9 x 9] intentionally omitted <==** (vii) The petitioner shall not leave the State of Kerala without the permission of the jurisdictional court. (viii) Needless to mention that, if the petitioner violates any of the above conditions, the Station House Officer shall be at liberty to approach the jurisdictional Court and file appropriate application seeking for cancellation of the bail. **(Sd/-) C.S.DIAS, JUDGE** kkj