Vaishnav v. State of Kerala and The Station House Officer, Vellathooval Police Station

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5426 OF 2024 ``` ``` CRIME NO.780/2023 OF VELLATHOOVAL POLICE STATION, IDUKKI ``` ## `PETITIONER:` ``` VAISHNAV, AGED 24 YEARS S/O VALSAN, KILIKOD HOUSE, CHALINGAD KARA, KAIPAMANGALAM VILLAGE, THRISSUR, PIN – 680681 ``` ``` BY ADVS.LAL K.JOSEPH P.MURALEEDHARAN (THURAVOOR) SURESH SUKUMAR T.A.LUXY ANZIL SALIM SANJAY SELLEN ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2THE STATION HOUSE OFFICER, VELLATHOOVAL POLICE STATION, VELLATHOOVAL - ANACHAL ROAD, VELLATHOOVAL, KERALA, PIN – 685563 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` _B.A.No.5426/2024_ _-:2:-_ _Dated this the 26[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.780/2023 of the Vellathooval Police Station, Idukki, which is registered against him for allegedly committing the offences punishable under Sections 450, 506(1), 354, 354(A)(i), 354B, 376, 376(2) (n), 376(3), 363, 366, 370, 370A & 370(4) of the Indian Penal Code, 1860 and Section 8 read with Sections 7, 4(2) read with Section 3(a)(b)(c)(d), 6 read with Section 5(l), 10 read with Section 9(i), 12 read with Section 11(ii)(iv), 14 read with Section 13(a)(b)(c) & 15(2) of the Protection of Children from Sexual Offences Act, 2012 and Section 67(b) of the Information Technology Act,2000. The petitioner was arrested and remanded to on judicial custody 13.01.2024. _B.A.No.5426/2024_ _-:3:-_ 2. The crux of the prosecution case is that: the accused had trespassed into the house of the victim, a girl aged 17 years, and committed rape on her in the month of May 2021. Subsequently, the accused also committed rape and penetrative sexual assault on the victim and took her nude pictures and videos and circulated them through the online platforms, and outraged her modesty. Thus, the accused has committed the above offences. 3. Heard; Sri. Lal K.Joseph, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. In fact, the petitioner and the victim were having a consensual relationship. The allegation that the petitioner had taken the nude _B.A.No.5426/2024_ _-:4:-_ pictures and videos of the victim and circulated the same is absolutely false. The petitioner is a 24-year-old boy, without any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last more than six months, the investigation in the case is complete, medical examinations have been conducted, and the final report has been laid on 20.02.2024. The case is committed to the Special Court and is numbered as S.C.No.102/2024. Therefore, the petitioner's further detention is not necessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has committed a very heinous crime by committing rape, penetrative sexual assault and also outraging the modesty of the victim. If the petitioner is released on bail, there is every likelihood of him intimidating the victim and her witnesses and also tampering with _B.A.No.5426/2024_ _-:5:-_ evidence. The petitioner’s release would also send a wrong message to the society. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he had trespassed into the house of the victim on several occasions and committed rape, penetrative sexual assault, and also outraged her modesty. In addition to the same, he had also taken the nude pictures and videos and circulated them through the online platforms. The fact remains that the petitioner has been in judicial custody for the last more than six months, the investigation in the case is complete, and the final report has been laid on 20.02.2024. The case is committed to the Special Court and is numbered as S.C.No.102/2024 Furthermore, the petitioner does not have any criminal antecedents. 7. In **Dataram Singh v. State of U.P** . [(2018) 3 SCC 22] the Honourable Supreme Court observed that _B.A.No.5426/2024_ _-:6:-_ 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., 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 _B.A.No.5426/2024_ _-:7:-_ 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. On an overall consideration of 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 more than six months, the petitioner does not have any criminal antecedents, the investigation in the case is complete, the medical examinations have been conducted, and the final report has been laid, taking into consideration the peculiar facts and _B.A.No.5426/2024_ _-:8:-_ circumstances of the case, 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. 780/2023. - (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 _B.A.No.5426/2024_ _-:9:-_ 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.780/2023, 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 of bail, if any filed, and pass orders on the same, in accordance with law. _B.A.No.5426/2024_ _-: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/26.07.24 //True copy// P.A. To Judge