Vishnu A.S v. State of Kerala

``` BAIL APPL.NO.6099/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58871 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 6099 OF 2024 ``` ``` CRIME NO.513/2024 OF PALLIKKATHODE POLICE STATION, KOTTAYAM ``` ## **`PETITIONER(S)/ACCUSED:`** ``` VISHNU A.S, AGED 20 YEARS S/O A.T. SAJIKUMAR, ATHIKUZHIYIL HOUSE, PULIMMOODU BHAGOM, VENGANTHANAM P.O, EDAKUNNAM VILLAGE, KOTAYAM DISTRICT., PIN – 686 512 ``` ``` BY ADV. SIJO PATHAPARAMBIL JOSEPH ``` ## **`RESPONDENT(S)/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM., PIN – 682 031 ``` ``` BY ADV. ``` ``` C.S HRITHWIK (SENIOR PUBLIC PROSECUTOR) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.6099/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58871 ``` ``` 2 ``` ## **O R D E R** ## **Dated this the 06[th] day of August, 2024** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, ‘BNSS’), by the sole accused in Crime No.513/2024 of the Pallikkathode Police Station, Kottayam, which is registered against the petitioner for allegedly committing the offences punishable under Sections 363, 354, 354 D of the Indian Penal Code and Sections 7 and 8 of the Protection of Children from Sexual Offences Act (in short, ‘Act’). The petitioner was arrested and remanded to on judicial custody 06.07.2024. 2. The gist of the prosecution case is that; on 25.05.2024, at around 11:30 hours, the accused took the victim, a 17 year old girl, to his house and dragged her to the bedroom, kissed her and demanded her to ``` BAIL APPL.NO.6099/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58871 ``` ``` 3 ``` have sexual intercourse with him. Thus, the accused has committed the above offences. 3. Heard; Sri. Sijo Pathaparambil Joseph, learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated into the crime. Infact the petitioner and the victim are in love. It is only at the instigation of the victim’s father that the present crime is registered. A reading of the first information report and the first information statement would reveal that none of the offences can be attributed against the petitioner. In any given case, the petitioner has been in judicial custody for the last one month, the investigation in the case is complete. Furthermore, ``` BAIL APPL.NO.6099/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58871 ``` ``` 4 ``` the petitioner does not have any criminal antecedents. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that, if the petitioner is enlarged on bail, there is every likelihood of him intimidating the victim and the witnesses and tampering with evidence. Therefore, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he had dragged the victim to his bedroom and kissed her and also demanded to have sexual intercourse with him. The fact remains that the petitioner has been in judicial custody for last one month and the investigation in the case is complete. Furthermore, the petitioner does not have any criminal antecedents. 7. In **Dataram Singh v. State of U.P.** , [(2018) 3 ``` BAIL APPL.NO.6099/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58871 ``` ``` 5 ``` 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., 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 ``` BAIL APPL.NO.6099/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58871 ``` ``` 6 ``` 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 30 days, the investigation in the case is complete and the petitioner does not have any criminal antecedents, I am of the firm view that the petitioner’s further detention is unnecessary. ``` BAIL APPL.NO.6099/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58871 ``` ``` 7 ``` 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. 513/2024. (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 from disclosing such facts to the court or to any Police Officer, or tamper with the evidence in any ``` BAIL APPL.NO.6099/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58871 ``` ``` 8 ``` manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if before the court below at the time of any, 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.513/2024, 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 of bail, if any filed, and pass orders on the same, in accordance with law. ``` BAIL APPL.NO.6099/2024 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:58871 ``` ``` 9 ``` (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. ``` ``` JJ ```