Sandeep Kumar Pathak v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 1[ST] DAY OF AUGUST 2024 / 10TH SRAVANA, 1946 BAIL APPL. NO. 6061 OF 2024 ``` ``` CRIME NO.624/2024 OF NJARAKKAL POLICE STATION, ERNAKULAM AGAINST THE ORDER DATED 10.07.2024 IN CRMP NO.1208 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM PETITIONER/ACCUSED: ``` ``` SANDEEP KUMAR PATHAK AGED 39 YEARS S/O RAJENDRA NATH PATHAK, HOUSE NO.34, GHURAHUPUR, KERAKAT, DEOKALI, JAUNPUR, UTTAR PRADESH, PIN-222142, NOW RESIDING AT MANGATT HOUSE, NEAR VYPPIN HOSPITAL, OCHANTHURUTH KARA, PUTHUVYPPU VILLAGE, PIN - 682508 ``` ``` BY ADVS. SALIM V.S. A.M.FOUSI A.B.AJIN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SMT SEETHA.S SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 01.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.6061 of 2024** **`2`** ## **Dated this the 1[st ] day of August, 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.624/2024 of the Njarakkal Police Station, Ernakulam, registered against him for allegedly committing the offences punishable under Section 354 of the Indian Penal Code and Section 15 of the Juvenile Justice (Care and Protection of Children) and Sections 8 r/w Section 7, Section 10 r/w Section 9 (l) and 9(n) of the Protection of Children from Sexual Offences Act (in short, ‘the POCSO Act’). The petitioner was arrested and remanded to judicial custody on 07.06.2024. 2. The prosecution case, in brief, is that; in January 2024, the accused, who is the father of the victim, a minor girl aged 14 years, had touched the breasts of the victim, put his hands in her undergarments, and kissed on her lips. He also grabbed **B.A. No.6061 of 2024** **`3`** the victim from behind and touched her genitals. He committed sexual assault on the victim on several occasions, and caused mental agony and pain to the victim, and outraged her modesty. Thus, the accused has committed the above offences. 3. Heard; Sri. V.A. Salim, the 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. The crime has been registered due to the animosity of the petitioner's wife against him. The victim has given a statement against the petitioner on a misconception of facts. There is no material to substantiate that the petitioner has outraged the modesty of the victim and committed sexual assault. The petitioner does not have any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last 54 **B.A. No.6061 of 2024** **`4`** days, the investigation in the case is complete, and the medical examinations have been completed. 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 the petitioner has committed a serious crime the very by outraging modesty and committing sexual assault on his own daughter. If the petitioner is enlarged on bail, there is every likelihood of him intimidating the witnesses and tampering with evidence, which would be prejudicial to the prosecution. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that he outraged the modesty of his daughter and committed sexual assault on her on numerous occasions. The petitioner claims total innocence of the accusations levelled against him. However, in view of Section 29 of the POCSO Act, the presumption of innocence cannot be **B.A. No.6061 of 2024** **`5`** drawn in favour of the petitioner. Whether or not the petitioner has committed the offences is a matter to be investigated and ultimately decided at the time of trial. The fact remains that the petitioner has been in judicial custody for the last 54 days, the investigation in the case is complete, and the petitioner does not have any criminal antecedents. It is also reported that the victim and the mother have returned to their native place in Uttar Pradesh. 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 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 **B.A. No.6061 of 2024** **`6`** 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. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 10. 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. **B.A. No.6061 of 2024** **`7`** 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the petitioner has been in judicial custody for the last 54 days, the investigation in the case is complete, and the petitioner does not have any criminal antecedents, I am of the firm view that the petitioner’s further detention is unnecessary. Hence, 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.1,00,000/- (Rupees one lakh 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 **B.A. No.6061 of 2024** **`8`** in Crime No. 624/2024. (ii) The petitioner shall not directly or indirectly make any inducement or threat to the victim or her witnesses or to any 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; (v) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Ernakulam, without **B.A. No.6061 of 2024** **`9`** 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 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].** **B.A. No.6061 of 2024** **`10`** (ix) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. **Sd/-** **C.S.DIAS, JUDGE** mtk/01.08.24