Santosh v. State of Kerala (Bail Application No. 5940 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942** ## **Bail Appl..No.5940 OF 2020** **CRIME NO.1447/2020 OF Kilikolloor Police Station , Kollam** ## **PETITIONER:** **SANTHOSH AGED 31 YEARS NEDIZHYIKATHU VEEDU KALAYIL KELINAGAR 211, KILLIKALLOOR, NOW RESIDING AT KULATHU VILE VEEDU VENEAPIL MAYANADU KOLLAM DISTRICT PIN-691303** **BY ADVS. SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SHRI.SAMEER M NAIR** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN-682031 2 STATION HOUSE OFFICER AGED 30 YEARS KILIKOLLOOR POLICE STATION, KOLLAM CITY, KOLLAM DISTRICT PIN-691004** ## **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.5940 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.5940 of 2020 ------------------------------- Dated this the 18[th] day of September, 2020 ## **O R D E R** This Bail Application filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the accused in Crime No.1447 of 2020 of Kilikolloor Police Station, Kollam. The above case is registered against the petitioner alleging offences punishable under Sections 354A and 451 of the IPC. The offence under Sections 7 and 8 of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act') is also alleged. 3.The prosecution case is that the petitioner with sexual intention trespassed into the de facto complainant house on 17.7.2020 at 3.00 p.m and touched the de facto complainant's daughter with sexual intention. The alleged incident happened B.A.No.5940 of 2020 3 on 17.7.2020. The mother of the minor filed a complaint before the police on 18.7.2020. 4. Heard the counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner approached this Court with an application u/s.438 Cr.P.C. This Court disposed the bail application as per Annexure-4 order directing the petitioner to surrender before the Investigating Officer. The counsel for the petitioner submitted that the petitioner surrendered before the Investigating Officer concerned on 14.9.2020. Thereafter the petitioner was produced before the Court concerned and as per Annexure-3 order, the lower court dismissed the bail application of the petitioner. The counsel submitted that, since the maximum punishment that can be imposed u/s.8 of the POCSO Act is 5 years, he is entitled the benefit of the Full Bench decision of this Court. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grant him bail. 6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner committed a serious B.A.No.5940 of 2020 4 offence. The Public Prosecutor made available the statement given by the mother of the victim. The Public Prosecutor submitted that the petitioner was arrested only on 14.9.2020. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. The only non bailable offence alleged against the petitioner is u/s.8 read with 7 of the POCSO Act. Maximum punishment that can be imposed u/s. 8 of the POCSO Act is 5 years. The other offences alleged against the petitioner are bailable offences. The petitioner surrendered before the Investigating Officer as directed by this Court in Annexure-A4 order. The interrogation of the petitioner is already over. A perusal of Annexure-3 order will not show that any custody application is filed by the prosecution. 8. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. I am also imposing a condition that the petitioner shall not enter the jurisdictional limit of Kilikolloor Police Station till final report is filed in this case. B.A.No.5940 of 2020 5 9. 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 COVID-19 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. 10. Moreover, it is a well accepted principle that the bail is the rule and the jail is the 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. 11. 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 B.A.No.5940 of 2020 6 directions: 1. Petitioner shall be released on bail on - 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 jurisdictional Court. 2. 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. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. Petitioner shall not commit an offence B.A.No.5940 of 2020 7 similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 5. 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. 6. The petitioner shall not enter the jurisdictional limit of Kilikolloor Police Station, Kollam till final report is filed in Crime No.1447 of 2020. 7. The petitioner will appear before the Investigating Officer on all Mondays at 10 a.m till final report is filed. For the purpose of appearance before the Investigating Officer, the petitioner can enter the jurisdictional limit of Kilikolloor Police Station. B.A.No.5940 of 2020 8 8. 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, JUDGE** cms