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High Court of KeralaSingle JudgeBail granted to the applicant on stringent cond...

Sebastian Shalwin D'Silva v. State of Kerala

Case / Petition Number:BA No. 2781 of 2020
Neutral Citation:/null

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2020-05-15
Court Decision / Holding
This Bail Application is allowed with stringent conditions: the petitioner shall be released on bail on a self bond with a Rs. 50,000/- bond and two solvent sureties of like amount; the petitioner must provide and update his residential address and phone number; he shall report to the Station House Officer after release and shall not tamper with witnesses or influence evidence; he shall cooperate with the investigation and appear before the Investigating Officer as required; a bond of Rs. 50,000 with two sureties shall be executed within a week of the jurisdictional court’s functioning; he shall adhere to social distancing and other government guidelines; violation of any condition can lead to cancellation of bail; the bail bond shall be transmitted to the jurisdictional court; the petitioner must disclose post-release address and contact details and is to comply with all terms and conditions.”,
Final Disposition
Bail granted to the applicant on stringent conditions.

Parties to the Case

Appellants / Petitioners

  • Sebastian Shalwin D'Silva

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala
  • Sub Inspector of Police, Kattoor Police Station, Thrissur District

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. K. I. Abdul Rasheed

Counsels for Respondents

  • • Public Prosecutor Sri B. Jayasurya (Sr)
  • • C.K. Prasad

Case Synopsis & Summary

This is a bail application filed under Section 439 Cr.P.C. by Sebastian Shalwin D'Silva, the sole accused in Crime No. 253/2020 of Kattoor Police Station, Thrissur district. The challan contends that the accused, aged 24, enticed and took away a 15-year-old girl on a motorcycle to his residence and subjected her to rape; the offences cited include IPC Sections 363 and 376 and POCSO Act sections 3, 4, 7, 8. The petitioner argued lack of criminal antecedents and claimed a love affair; the prosecution countered that the minor’s residence proximity to the accused’s home and the alleged rape warrant strict bail conditions. The judge noted the victim’s minor status but observed the need to balance bail with fair trial guarantees, especially during the COVID-19 pandemic. Citing Supreme Court and Kerala High Court directions on reducing prison population and social distancing, the judge concluded that bail can be granted with stringent conditions given the petitioner’s custody since 03.04.2020 and the absence of an antecedent. The order outlines conditions including self-bond, contact details, reporting obligations, appearance before IO, non-tampering with witnesses, and a bond of Rs. 50,000 with two sureties, supplemented by adherence to social distancing directives. The bail, however, remains contingent on compliance, with potential cancellation for violations.

Provisions of Law Cited

Section 439 of Cr.P.C.Sections 363 and 376 IPCSections 3, 4, 7 and 8 of the Protection of Children from Sexual Offences Act, 2012Section 441 Cr.P.C.

Legal Doctrines & Maxims

  • Bail is the rule and jail is the exception.
  • The accused should have opportunity for a fair trial; basic jurisprudence of bail remains the same (grants of bail as rule) to ensure fair trial.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner, aged 24, has no criminal antecedents and contends the relationship with the minor girl was a love affair. He asserts the allegations are not established and requests bail under stringent conditions due to the minor victim's age (15) and the proximity of the two residences. He emphasizes the need to balance bail with a fair trial and notes that he has been in custody since 03.04.2020; he agrees to comply with conditions including reporting duties, bond, and restrictions to prevent tampering with witnesses.

Contentions of Respondents

The State contends that the minor girl was taken to the petitioner's house and subjected to rape, making the offences under IPC Sections 363, 376 and POCSO applicable. It argues that due to the victim’s age and the proximity of the homes, bail should be granted only with stringent conditions to ensure safety and effective investigation, citing the COVID-19 context and public health guidelines to minimize prison populations.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Re: Contagion of COVID-19 Virus In Prisons caseSuo Motu Writ Petition(C) No.1 of 2020PositiveCourts have relied on the Supreme Court’s directions to minimize prison populations and to implement social distancing, which informed the imposition of conditional bail in this case.
Chidambaram P. v. Directorate of Enforcement2019 (16) SCALE 870PositiveThe judgment cites the principle that bail is the rule and imprisonment is the exception to emphasize the presumption in favor of bail and need for fair trial.
W.P(C) No.9400 of 2020W.P(C) No. 9400 of 2020PositiveFull Bench directions within Kerala High Court regarding minimizing inmates in prisons are cited to justify social distancing and related bail conditions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 15TH DAY OF MAY 2020 / 25TH VAISAKHA, 1942** ## **BA NO.2781 OF 2020** **(CRIME NO. 253/2020 OF KATTOOR POLICE STATION, THRISSUR DISTRICT)** ## **- PETITIONER/ACCUSED:** **SEBASTIAN SHALWIN D’SILVA, AGED 24 YEARS S/O. JOVAI D’SILVA CHETTIVALAPPIL HOUSE, PADIYOOR P.O. MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN – 680 703** **BY ADV.SRI. K.I. ABDUL RASHEED** ## **- RESPONDENTS/ COMPLAINANTS:** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031.** **2. SUB INSPECTOR OF POLICE, KATTOOR POLICE STATION, KATTOOR, THRISSUR DISTRICT, PIN – 680 702.** **BY P.P. SRI.B.JAYASURYA (SR) & C.K.PRASAD** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15.05.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BA NO.2781 OF 2020** **2** ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No. 2781 of 2020 ------------------------------- Dated this the 15[th] day of May, 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 sole accused in Crime No. 253 of 2020 of Kattoor Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 363 and 376 of IPC and Sections 3, 4, 7 and 8 of the Protection of Children from Sexual Offences act, 2012. 3.The prosecution case is that the petitioner enticed and took away the 15 year old victim from her residence at Kongadanthuruth, in a motor cycle to his house and committed rape on her. The petitioner was arrested on 03.04.2020. 4. The counsel for the petitioner submitted that, the petitioner is aged 24 years and the minor girl is aged 15 **BA NO.2781 OF 2020** **3** years. There is no criminal antecedent against the petitioner. The counsel for the petitioner also submitted that they are in love affair and the incident is not happened as alleged by the prosecution. 5.The learned Public Prosecutor submitted that, the house of the minor girl and the house of the petitioner is situated adjacent and if this Court is granting bail, stringent conditions may be imposed. The Public Prosecutor also submitted that, the petitioner committed rape on the minor child. 6. Considering the facts and circumstances, I think this Bail Application can be granted on stringent conditions. The admitted prosecution case is that the victim went along with the petitioner in his motor cycle to the house of the petitioner. It is the further case of the prosecution that, from the house of the petitioner, the petitioner committed rape on the victim. It is true that the victim is a minor girl. But the counsel for the petitioner submitted that the petitioner and **BA NO.2781 OF 2020** **4** the victim were in love and that is a matter to be investigated and decided at the time of trial. Considering the facts and circumstances of this case and considering the fact that the petitioner is in custody from 03.04.2020 onwards, I think this Bail Application can be allowed. 7. 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. 8. 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 **BA NO.2781 OF 2020** **5** 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. 9. 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 Superintendent of Jail concerned where the petitioner is incarcerated is directed to release the petitioner on bail on executing a self bond ensuring that he will appear before the Court concerned as and when required, if he is not in detention in any other case. It is further directed that the Superintendent of Jail should get the bail bond from the petitioner as stipulated in Section 441 Cr.P.C. 2. The Superintendent of Jail concerned **BA NO.2781 OF 2020** **6** shall also get the phone number and the address at which the petitioner would be residing after his release. 3. The Superintendent of Jail concerned, immediately after release of the petitioner will forthwith forward the bail bond obtained from the petitioner to the jurisdictional Court. 4. The petitioner immediately after release from the prison, report before the Station House Officer of the Jurisdictional Police Station and shall furnish his phone number and the place where he is going to reside. The Station House Officer concerned shall keep a vigil on the whereabouts of the petitioner and shall ensure that the petitioner do not violate the terms of the undertaking. **BA NO.2781 OF 2020** **7** 5. The petitioner shall appear before the Investigating Officer as and when required. The petitioner shall co-operate with the investigation and shall not threaten or attempt to influence the witnesses or tamper with the evidence. 6. The petitioner shall within one week from the commencement of the functioning of the jurisdictional court, if the court is not functioning at present, execute 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. 7. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing and **BA NO.2781 OF 2020** **8** other directions in the wake of declared lock- down. 8. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance with law, even though the bail is granted by this Court. **Sd/-** ## **P.V.KUNHIKRISHNAN, JUDGE** RK