Akhil Jose vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.852/2024 of the Perumbavoor Police Station, Ernakulam, which is registered against him for allegedly committing the offences punishable under Sections 354 & 354(A)(1)(i) of the Indian Penal Code, 1860, Section 8 read with Section 7 of the Protection of Children from Sexual Offences Act, 2012. The petitioner was arrested on 05.06.2024.

The essence of the prosecution case is that: on 05.06.2024, at around 21.30 hours, while the first informant (victim) and her mother were travelling in KSRTC bus from Aluva to Adimaly, the accused, who was a co-passenger, groped the breasts of the victim and outraged her modesty. Thus, the accused has committed the above offences.

Heard; Sri. T.Madhu, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. It is out of the misconception that the victim has lodged a complaint against the petitioner. The petitioner has been in judicial custody for the last 20 days, and the investigation in the case is practically complete. The petitioner does not have any criminal antecedents. The petitioner is the sole breadwinner of his family. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor seriously opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is enlarged on bail, there is every likelihood of him intimidating the victim and witnesses and also tampering with evidence. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that he outraged the modesty of the victim and committed sexual assault on her by touching her breasts. The fact remains that the petitioner has been in judicial custody for the last 20 days, and the investigation in the case is practically complete. Moreover, I find that the petitioner does not have any criminal antecedents.

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.

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.

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 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.

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. The right to bail cannot be denied merely due to the sentiments of the society.

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 20 days, the investigation in the case is practically complete, and the petitioner does not have any criminal antecedents, 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.852/2024.

(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 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.852/2024, 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.

(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 Anr. [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.