Swraj K.K. v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ``` BAIL APPL. NO. 5012 OF 2024 ``` ``` CRIME NO.142/2024 OF VADAKKEKARA POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` SWARAJ.K.K, AGED 37 YEARS S/O KUNJAPPAN, THATTADICAL HOUSE, VAVAKAD, VADAKKEKARA VILLAGE, ERNAKULAM, NOW RESIDING AT KAIMADATHIL HOUSE, VADAKKEKARA.P.O., NORTH PARAVUR, PIN – 683522 BY ADVS.B.S.SWATHI KUMAR HARISANKAR N UNNI ``` ## `RESPONDENT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ## `SR PP SMT SEETHA S` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.5012/2024_ _-:2:-_ _Dated this the 18[th] day of July, 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.142/2024 of the Vadakkekara Police Station, Ernakulam, which is registered against him for allegedly committing the offences punishable under Sections 376, 376(2)(k), 376(2)(n), 376B of the Indian Penal Code, 1860, Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2000 & Sections 3(b), 4, 6, 51, 5m, 5n, 5p of the Protection of Children from Sexual Offences Act, 2012. The petitioner was arrested and remanded to on judicial custody 03.05.2024. 2. The essence of the prosecution case is that: the accused, who is the stepfather of the minor victim, had inserted his finger into her vagina during the period from June, 2023 to 16.02.2024, and committed _B.A.No.5012/2024_ _-:3:-_ penetrative sexual assault on the victim. Thus, the accused has committed the above offences. 3. Heard; Sri. B.S.Swathi Kumar, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. The present crime has been registered at the instance of the biological father of the victim is inimical towards the petitioner because he married the victim’s mother. In the 164 Cr.P.C. statement given by the victim, at the first instance, she categorically stated that the petitioner has not committed any offence against her. Similarly, the victim has refused to undergo the medical examination. Subsequently, at the influence of the father of the victim, a second 164 Cr.P.C. statement was recorded, which is impermissible in law, and the _B.A.No.5012/2024_ _-:4:-_ victim has made the allegations. Going by the materials on record, there is nothing to show that the petitioner has committed the above offences. In any given case, the petitioner has been in judicial custody for the last 78 days, and the investigation in the case is complete. The petitioner does not have any criminal antecedents. Therefore, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the application. She submitted that it is only because the victim was scared that she did not reveal that the petitioner had committed penetrative sexual assault on her. However, in the second statement, she has clearly stated that the petitioner has committed penetrative sexual assault. However, the medical examination could not be conducted since the victim refused to subject herself to a medical examination. If the petitioner is released on bail, there is every likelihood of him intimidating the victim and her witnesses and _B.A.No.5012/2024_ _-:5:-_ also tampering with evidence. Hence, the application may be dismissed. Nonetheless, she did not dispute the fact that the petitioner does not have any criminal antecedents. 6. The prosecution allegation against the petitioner is that he committed penetrative sexual assault on the victim by inserting his finger into her vagina. Indisputably, as per the first 164 Cr.P.C. statement of the victim, she has not stated anything about the said accusation. It is also on record that the victim’s medical examination has not been conducted, due to her refusal. Subsequently, the victim has alleged that the petitioner has committed penetrative sexual assault. Admittedly, the petitioner is the stepfather of the victim, and there is acrimony between the petitioner and the biological father of the victim. The fact remains that the petitioner has been in judicial custody for the last 78 days, the investigation in the _B.A.No.5012/2024_ ## _-:6:-_ case is practically complete, and the petitioner's potency test has been conducted. 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 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.,** _B.A.No.5012/2024_ _-:7:-_ **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. 11. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 78 days, the petitioner does _B.A.No.5012/2024_ _-:8:-_ not have any criminal antecedents, and the investigation in the case is complete, 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 in Crime No. 142/2024. - (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 _B.A.No.5012/2024_ _-:9:-_ 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 enter the Taluk where the victim and the witnesses are residing till the conclusion of the trial in Crime No.142/2024, other than for the purpose of reporting before the Investigating Officer; - (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation ofbail, if any filed, and pass orders on the same, in accordance with law. _B.A.No.5012/2024_ _-:10:-_ - (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]. - (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** DST/18.07.24 //True copy// P.A. To Judge