Ratheesh K. K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 22[ND] DAY OF OCTOBER 2021 / 30TH ASWINA, 1943** **BAIL APPL. NO. 7065 OF 2021** **(AGAINST THE ORDER IN Crl.M.P.No.267/2021 IN S.C.NO.5/2021 BEFORE THE FAST TRACK SPECIAL JUDGE, KOYILANDY IN CRIME NO.1092/2020 OF** ## **THE BALUSSERY POLICE STATION).** ## **PETITIONER/PETITIONER/ACCUSED:** RATHEESH.K.K AGED 38 YEARS S/O. RAGHAVAN, NELLIPARAMBIL HOUSE, EKAROOL P.O., VALLIYOTH, BALUSSERY, 673 612. BY ADVS. NIRMAL.S VEENA HARI ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. (BY THE STATION HOUSE OFFICER, BALUSSERY POLICE STATION). *ADDL.R2 XXXX XXXX *(VICTIM) IS IMPLEADED AS ADDLR2 AS PER ORDER DATED 13/10/2021 IN CRL MA 1/2021 ## **OTHER PRESENT:** SRI C.N. PRABHAKARAN (SR.PP) **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. No. 7065 OF 2021** 2 ## **O R D E R** This is an application for regular bail. The petitioner is the sole accused in S.C. No. 5/2021 now pending before the Fast Track Special Judge, Koyilandy. The allegation against the petitioner is that he raped a 6 ½ year old girl child on 4.11.2020. The girl victim and her parents are stated to be permanent residents of Nepal. The petitioner was arrested on 6.11.2020 and has been in custody ever since. In the light of the provisions of sub-section 1-A of Section 439 of the Code of Criminal Procedure, this Court had directed issuance of notice to the _de-facto_ complainant through the Station House Officer, Balussery Police station. However, it is reported that the victim and her parents are no longer available in the locality and it is learnt that they had returned to Nepal. 3. Smt. Veena Hari, the learned counsel for the petitioner would submit that the petitioner has been in custody since 6.11.2020 and that though the final report in the matter has been filed, there is remote possibility of trial commencing immediately on account of the fact that the victim and her parents are not available at present to give evidence in the matter. It is also submitted that long incarceration of an under trial prisoner who is presumed to be innocent until proven guilty violates rights guaranteed under Article 21 of the Constitution of India. She cites _**Shri Gurbakh Singh Sibbia and Others vs. State of Punjab[1]**_ , to contend that grant of bail is the rule and refusal is the exception and _**Shaheen Welfare**_ 1 _(1980) 2 SCC 565_ **BAIL APPL. No. 7065 OF 2021** 3 _**Association v. Union of India and Others[2]**_ , to contend that under trial prisoners facing serious offences are also entitled to bail when there is no prospect of trial being conducted in near future. 4. The learned Public Prosecutor submitted that the principle that an accused is presumed to be innocent until proven guilty may not be a ground to grant bail in this case and cites _**Virupakshappa Gouda and Another v. State of Karnataka and Another[3] ,**_ in support of his contention. He also cites _**Gobarbhai Naranbhai Singala v. State of Gujarat[4] ,**_ and **Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and** **Another[5] ,** to bring to my notice the factors to be considered while granting bail. 5. In _**Gurbakh Singh Sibbia (supra)**_ which, was decided by a 5 Judge Bench of the Supreme Court, it was held :- _“28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1)_ _“... the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right.”_ 2 _(1996) 2 SCC 616_ 3 _AIR 2017 SC 1685_ 4 _(2008) 3 SCC 775_ 5 _(2004) 7 SCC 528_ **BAIL APPL. No. 7065 OF 2021** 4 _29. In Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that: (SCC p. 129, para 29)_ _“There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.”_ _30. In American Jurisprudence (2nd, Volume 8, p. 806, para 39), it is stated:_ _“Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.”_ _It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”_ _**Virupakshappa Gouda (supra)**_ refers to certain earlier decisions and holds that the considerations that must weigh with the Court while deciding whether or not to grant bail are the following: - _“(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;_ _(ii) nature and gravity of the accusation;_ _(iii) severity of the punishment in the event of conviction;_ **BAIL APPL. No. 7065 OF 2021** 5 _(iv) danger of the accused absconding or fleeing, if released on bail;_ _(v) character, behaviour, means, position and standing of the accused;_ _(vi) likelihood of the offence being repeated;_ _(vii) reasonable apprehension of the witnesses being influenced; and_ _(viii) danger, of course, of justice being thwarted by grant of bail.”_ ## In _**Kalyan Chandra Sarkar (supra)**_ it was held: - _“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence…….”._ From the above it is clear that while the right to seek bail especially at the pre-conviction stage flows from Article 21 of the Constitution of India, the Courts also keep in mind the circumstances noted in _**Virupakshappa Gouda (supra)**_ while deciding the issue of bail. 7. Coming to the facts of this case, it is clear that the petitioner has been charged with the commission of a very serious offence on a hapless minor girl who was only 6 ½ years old on the date of the incident for which stringent punishment is contemplated by law. These are factors that must weigh with me in the light of the law laid down in _**Virupakshappa Gouda (supra)**_ and the decisions referred to in that judgment. However it **BAIL APPL. No. 7065 OF 2021** 6 is also clear from the _ratio_ of _**Gurbakh Singh Sibbia (supra)**_ that the purpose of pre-conviction detention is essentially to aid investigation and to “..... _secure his appearance and submission to the jurisdiction and the judgment of the court…..”._ That decision is also authority for the proposition that “.... _the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail”._ _**Shaheen Welfare Association (supra)**_ is authority for the proposition that the seriousness of the offence cannot be the sole ground to refuse bail. The facts of the present case show that the investigation has been completed and a final report has already been filed in Court. It is also clear that there is no certainty regarding the date on which the trial of S.C. No. 5/2021 will commence for reasons already indicated. The petitioner has been in custody from 6.11.2020. These three factors compel me to hold that the petitioner can be released on bail subject to strict conditions to ensure that the petitioner is available to face trial and to ensure that he does not influence or intimidate any of the witnesses in S.C. No. 5/2021. In the result, this application for bail is allowed and it is directed that the petitioner shall be released on bail subject to the following conditions:- (i) The petitioner shall execute bond for a sum of Rs.1,00,000/(Rupees One lakh only) with two solvent sureties for the like sum to the satisfaction of the Fast Track Special Judge, Koyilandy; **BAIL APPL. No. 7065 OF 2021** 7 - (ii) The petitioner shall appear before the Station House Officer, Balussery Police station on every Saturday at 11 am until further orders; - (iii) The petitioner shall not attempt to influence or intimidate the victim or any witness in S.C. No. 5/2021 now pending before the Fast Track Special Judge, Koyilandy; - (iv) The petitioner shall surrender his passport before the Fast Track Special Judge, Koyilandy. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release on bail; - (v) The petitioner shall appear before the Fast Track Special Judge, Koyilandy on every posting of S.C. No.5/2021 without fail; - (vi) The petitioner shall not be involved in any other crime while on bail. If any of the aforesaid conditions are violated, the Station House Officer of Balusssery Police station may file an application before the Fast Track Special Judge for cancellation of bail. However, the Fast Track Special Judge, Koyilandy will have the right to modify any of the aforesaid conditions in exceptional circumstances. Considering the submission of the Learned Public Prosecutor that the victim and her family were forced to go back to Nepal on account of pressure tactics adopted at the instance of the Petitioner, it is directed that the Fast Track Special Judge - Koyilandy before whom S.C. No.5/2021 is pending, will closely **BAIL APPL. No. 7065 OF 2021** 8 monitor the progress of S.C. No.5/2021 and ensure that the trial of that case is not prolonged unnecessarily and every endeavour is made to ensure presence of all the witnesses who may be called upon to give evidence for the prosecution and to commence and conclude the trial at the earliest. Registry is directed to forward a copy of this judgment to the Fast Track Special Judge - Koyilandy to ensure compliance of this direction. **Sd/-** **GOPINATH P. JUDGE** ``` al/- ```