Vaish Mohanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 18TH DAY OF AUGUST 2020 / 27TH SRAVANA, 1942** ## **Bail Appl..No.5079 OF 2020** **AGAINST THE ORDER IN CRMP 977/2020 DATED 07-08-2020 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - II, MANJERI** **CRIME NO.311/2020 OF Thenhipalam Police Station , Malappuram** ## **PETITIONER:** **VAISH MOHANAN AGED 19 YEARS N.VOICE VILLA, H.NO.56,THANISSERY DESOM, NEAR KALLADA TEMPLE, IRINJALAKUDA, THRISSUR, PIN-680701** **BY ADV. SRI.JITHIN BABU A** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN-682031** ## **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.5079 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.5079 of 2020 ------------------------------Dated this the 18[th] day of August, 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.311 of 2020 of Thenhipalam Police Station, Malappuram. The above case is registered against the petitioner alleging offence punishable under Sections 376(2)(m), 506 IPC and Section 5(l), 6, 7, 8, 11(v), 12, 13(a), 13(b), 14(1), 14(3), 15 of the POCSO Act and Section 66E of the Information Technology Act. 3.The prosecution case is that on 7.4.2019, the accused enticed the minor girl aged 17 years to the Sarovaram Park at Kozhikode and then committed sexual harassment. It is also alleged that in the second week of February, 2020 the accused B.A.No.5079 of 2020 3 came to the residential house of the victim and had sexual intercourse from the courtyard of the house without her knowledge and consent. On the next day at about 9 am the accused again came to the house of the victim and committed sexual harassment. It is alleged that the petitioner took video of the minor in undressed manner. He also threatened to kill the victim with ulterior object. 4. Heard the counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner and the victim girl were in love. They became friends through face book. The petitioner submitted that the allegation against the petitioner are not correct. He is in custody from 5.7.2020. The counsel submitted that the petitioner is ready to abide any condition, if this Court grant him bail. 6. The learned Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner committed the offence on a minor girl. Therefore, the Public B.A.No.5079 of 2020 4 Prosecutor submitted that the petitioner may not be released on bail at this stage. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. The age of the petitioner is 19 and the age of the victim is 17. It is admitted that the petitioner and the victim girl were in love. Simply because the petitioner and the victim were in love, the petitioner cannot commit sexual assault on the victim because she is minor. Now the petitioner is arrested on 5.7.2020. He is in custody from that date onwards. 8. Considering the detention period of the petitioner and considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. The Public Prosecutor submitted that the petitioner is having the photographs and video of the victim girl. There can be a condition that he will not circulate the same and he will surrender before the Investigating Officer if not already surrendered. B.A.No.5079 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 B.A.No.5079 of 2020 6 case, this Bail Application is allowed with the following 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. B.A.No.5079 of 2020 7 4. Petitioner shall not commit an offence 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 will not circulate or publish any photographs or video of the victim. If he is having any such material, he will produce the same before the Investigating Officer forthwith. 7. The petitioner will appear before the Investigating Officer on all Mondays at 10 a.m till final report is filed in Crime No.311 of 2020 submitted before the Court concerned. B.A.No.5079 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