SAINUDHEEN N.P. v. STATE OF KERALA

## **B.A.NO.6801 OF 2020 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **Bail Appl..No.6801 OF 2020** **CRIME NO.441/2020 OF OONNUKAL POLICE STATION , ERNAKULAM DISTRICT** ## **PETITIONER/ACCUSED:** **SAINUDHEEN N.P. AGED 55 YEARS** **NEDUMPILLIYIL HOUSE, KOOVALLOOR PO, ERNAKULAM 686671** ## **BY ADV. SRI.PEEYUS A.KOTTAM** ## **RESPONDENTS/STATE,COMPLAINANT & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** - **2 STATION HOUSE OFFICER OONNUKAL POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 686693** - **3 SHANILA, AGED 25 YEARS, W/O.FAISAL, RESIDING AT MEPPARAMBIL HOUSE, EDATHALA P.O., ERNAKULAM DISTRICT** **[IMPLEADED AS PER THE ORDER DATED 4.11.2020 IN CRL.M.A.NO.1/2020 IN B.A.NO.6801/2020]** **R1 & R2 BY SRI.RENJITH.T.R., PUBLIC PROSECUTOR R3 BY SRI.JOMON.J. MALIEKKAL** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. NO.6801 OF 2020 2 ## **O R D E R** ## **Dated this the 4th day of November 2020** ... **This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.** **2. The petitioner is the accused in Crime No. 441 of 2020 of Oonnukal Police Station, Ernakulam District. The above case is registered against the petitioner alleging offences punishable under Sections 354A of the Indian Penal Code (IPC). The offence under Section 10 r/w 9(m) of the Protection of Children from Sexual Offences Act, 2012 and Section 75 of the Juvanile Justice Act are also alleged against the petitioner.** **3. The prosecution case is that, the victim who is a minor girl aged 3½ years is sexually abused by the petitioner, who is the paternal grandfather of the victim.** **4. Heard the learned counsel for the** B.A. NO.6801 OF 2020 3 **petitioner, Sri.Jomon J. Maliekkal, the learned counsel for the defacto complainant and the learned public prosecutor.** **5. The learned counsel for the petitioner submitted that, the allegation against the petitioner is not correct. The counsel submitted that, there is some matrimonial dispute between the defacto complainant and the petitioner. The counsel submitted that, this is a false case foisted against the petitioner. Subsequently, the defacto complainant came to know that no such incident happened. Now an affidavit is also filed by the defacto complainant which is Annexure-1.** **6. The learned counsel for the defacto complainant submitted that, the defacto complainant has no grievance against the petitioner and she has no objection in granting bail to the petitioner.** **7. The learned Public Prosecutor even though opposed this bail application, submitted that if this Court is granting bail to the petitioner, stringent conditions may be imposed. The public** B.A. NO.6801 OF 2020 4 **prosecutor submitted that the statement under Section 164 Cr.P.C. of the victim was recorded. Thereafter, an additional statement is now recorded from the defacto complainant in which she stated that she has no objection in allowing the bail application.** **8. After hearing both sides, I think, this bail application can be allowed on stringent conditions. The defacto complainant filed an affidavit before the Court in which she stated like this:** _**“1. I am the mother of Affrin Ayisha, aged 3 ½ years old. I had some family dispute with my husband and hence from 17.9.2020 onwards I along with my younger daughter Affrin Ayisha is residing in my parental house. My daughter is having some itching (skin) problem and she was under treatment of public health centre, Edathala during first week of August, 2020 and now she is under the treatment of Renai Medicity, Mamangalam.**_ _**2. On the basis of the statement given my daughter when she was treated at Renai Medicity at Mamangalam, Crime No.441 of 2020 is registered against my father-in-law before the Oonnukal police station.**_ _**3. I respectfully submit that my father-inlaw is a respectable religious man and my daughter**_ B.A. NO.6801 OF 2020 5 _**happened to give such statement due to some misunderstanding. I have no grievance against my father-in-law who is the petitioner in the above Criminal Miscellaneous Case filed seeking anticipatory bail.”**_ **9. It is true that, the offence alleged against the petitioner cannot be compounded. Anyway, I do not want to make any observation about the merit of this case. Considering the entire facts and circumstances of this case, I think, this bail application can be allowed on stringent conditions.** **10. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in Re: Contagion of COVID19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench of this Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons.** **11. Moreover, it is a well accepted principle that, the bail is the rule and the jail is the** B.A. NO.6801 OF 2020 6 **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.** **12. 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. The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation;** **2. After interrogation, if the** **Investigating Officer proposes to arrest the petitioner, he shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty** B.A. NO.6801 OF 2020 7 **Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer** **concerned;** **3. 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 dissuade him from disclosing such facts to the Court or to any police officer;** **4. The petitioner shall not leave India without permission of the Court;** **5. The petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which** B.A. NO.6801 OF 2020 8 ## **he is suspected;** **6. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic;** **7. 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.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**