Vijayan v. State of Kerala

``` 2025:KER:2835 ``` **==> picture [58 x 58] intentionally omitted <==** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` THURSDAY, THE 3[RD] DAY OF APRIL 2025 / 13TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4163 OF 2025 ``` ``` CRIME NO.1143/2024 OF KATTAKADA POLICE STATION, THIRUVANANTHAPURAM ``` ``` AGAINST THE ORDER DATED 19.12.2024 IN BAIL APPL. NO.10565 OF ``` ``` 2024 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/ACCUSED:`** ``` VIJAYAN AGED 59 YEARS S/O.PAKIYAN THOPPUVILKATHU VEEDU, KATTAKADA.P.O, THIRUVANANTHAPURAM DISTRICT, PIN - 695572 ``` ## **`BY ADV S.NIKHIL SANKAR`** ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM (REPRESENTING THROUGH STATION HOUSE OFFICER ,KATTAKADA POLICE STATION,THIRUVANANTHAPURAM DISTRICT-695572), PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP-HRITHWIK C S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 4163 OF 2025 2 ``` ``` 2025:KER:28358 ``` **==> picture [57 x 57] intentionally omitted <==** **P.V.KUNHIKRISHNAN, J -------------------------------B.A.No. 4163 of 2025 ------------------------------Dated this the 3[rd ] day of April, 2025** ## **O R D E R** This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the accused in Crime No.1143 of 2024 of Kattakada Police Station, Thiruvananthapuram, registered alleging offences punishable under Sections 376(2)(n), 376AB, 354 & 354A(1)(i) of Indian Penal Code (for short 'IPC') and Sections 4, 3(b), 6, 51, 5m, 8, 7, 10, 91 & 9m of Protection of Children from Sexual Offences (for short 'POCSO Act'). 3. The prosecution case is that victim is a minor girl aged 6 years. She is studying in 2[nd] standard. Petitioner is a neighbor of the victim. One day while she was coming from school, she went to petitioner's house, were none was present except the petitioner. Petitioner allegedly took her to a cow shed where he inserted his fingers into her ``` BAIL APPL. NO. 4163 OF 2025 3 ``` **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:28358` vagina and with sexual intend causing bleeding. It is further alleged that petitioner repeated similar acts on several occasions and threatened her with dare consequences, if she disclose the same. It is also alleged that the petitioner reportedly lifted his dhothi and exhibited his private parts to the victim. Hence it is alleged that the accused committed the offence. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is in custody from 07.10.2024. The counsel submitted that the petitioner is ready to abide by any conditions, if this Court grants him bail. 6. Public Prosecutor opposed the bail application. Public Prosecutor also submitted that the final report is already filed. 7. This Court considered the contention of the petitioner and the Public Prosecutor. Since the offence alleged include the offence under Section 376AB of IPC, this Court directed the Investigating Officer to serve notice to the ``` BAIL APPL. NO. 4163 OF 2025 4 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:28358 ``` victim/parents of the victim. Now, the Public Prosecutor submitted that notice is served to the victim/parents of the victim, there is no appearance for the victim. This Court carefully perused the First Information Station. The petitioner is in custody from 07.10.2024 and the final report is already filed, there is no appearance for the victim. Indefinite incarceration of the petitioner is not present. 8. Considering the facts and circumstances of the case, I think the petitioner can be released on bail. But, I make it clear that, if the petitioner tried to influence the victim or her relatives, the Investigating Officer is free to file appropriate application before the Jurisdictional Court to cancel the bail, and if such an application is filed the Jurisdictional Court can pass appropriate orders, even though this bail order is passed by this Court. 9. 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 ``` BAIL APPL. NO. 4163 OF 2025 5 ``` **==> picture [57 x 57] intentionally omitted <==** ``` 2025:KER:28358 ``` 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. 10. Moreover, in **Jalaluddin Khan v. Union of India [2024 KHC 6431]** , the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. ``` BAIL APPL. NO. 4163 OF 2025 6 ``` ``` 2025:KER:28358 ``` **==> picture [57 x 57] intentionally omitted <==** Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modifcation that the bail can be granted if the conditions in the statute are satisfed. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) 11. In **Manish Sisodia v. Directorate of** **Enforcement [2024 KHC 6426]** , also the Hon'ble Supreme Court observed that: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well - settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that ``` BAIL APPL. NO. 4163 OF 2025 7 ``` ``` 2025:KER:28358 ``` **==> picture [57 x 57] intentionally omitted <==** the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception". 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. 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. ``` BAIL APPL. NO. 4163 OF 2025 8 ``` ``` 2025:KER:28358 ``` **==> picture [57 x 57] intentionally omitted <==** 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 similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 5. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in **Anzar Azeez v.** ``` BAIL APPL. NO. 4163 OF 2025 9 ``` ``` 2025:KER:28358 ``` **==> picture [57 x 57] intentionally omitted <==** ## **State of Kerala [2025 SCC OnLine KER** **1260]** is applicable in this case also. 6. 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. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. **Sd/-** **P.V.KUNHIKRISHNAN JUDGE** MSA ``` BAIL APPL. NO. 4163 OF 2025 10 ``` ``` 2025:KER:28358 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`APPENDIX OF BAIL APPL. 4163/2025`** ## **`PETITIONER ANNEXURES`** ``` Annexure 1TRUE COPY OF THE F.I.R IN CRIME NO:1143/2024 OF KATTAKADA POLICE STATION,THIRUVANANTHAPURAM ``` ``` Annexure 2TRUE COPY OF THE ORDER IN CRL.M.P. NO:2856/2024 OF ADDITIONAL SESSIONS JUDGE(POCSO),THIRUVANANTHAPURAM DATED 20/11/2024 ``` ``` Annexure 3TRUE COPY OF THE ORDER OF THIS HONOURABLE COURT IN B.A NO:10565/2024 DATED 19/12/2024 ``` ``` Annexure 4TRUE COPY OF THE ORDER IN CRL.M.P. NO:45/2025 OF ADDITIONAL SESSIONS JUDGE(POCSO),THIRUVANANTHAPURAM DATED 16/01/2025 ```