Basheer. N vs State Of Kerala

This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference.

Petitioner is the accused in Crime No.1100 of 2020 of Mananthavady Police Station. The above case is registered against the petitioner alleging

offences punishable under Sections 354, 354A, 354B and 376(2)(e) of IPC. The offence under Section 6 r/w. Section 5(e) and Section 10 r/w. Section

9(e) of the Protection of Children from Sexual Offences Act (for short 'POCSO Act') is also alleged.

The prosecution case is that the petitioner is a traditional Ayurvedic medical practitioner. The de facto complainant started treatment under him for

her disk complaint. On 23.9.2020 at about 12.45 p.m, in the course of treatment, the petitioner disrobed the de facto complainant, who is a child aged

about 17 years, from his house situated at Mananthavady town and in the guise of massaging, he committed sexual assault and also penetrative sexual

assault on the de facto complainant by inserting his fingers into her vagina and squeezing her breast. Hence, it is alleged that the accused committed

the offence. The petitioner was arrested on 26.9.2020.

Heard the counsel for the petitioner and the learned Public Prosecutor.

The counsel for the petitioner submitted that the petitioner is a traditional ayurvedic practitioner having experience for about 30 years. The counsel

submitted that the incident is not happened as alleged by the prosecution. The petitioner was doing his treatment. The counsel submitted that there is

no bad intention on the part of the petitioner. The victim misunderstood the treatment and lodged the complaint. The counsel submitted that the

petitioner is in custody for about 59 days. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grant him bail. The

counsel submitted that the petitioner is a cardiac patient also.

The Public Prosecutor opposed the bail application. But in the report submitted by the Inspector, Mananthavady Police Station, it is stated in column

No.13 that the investigation of the case is almost over. The draft charge is already submitted before the DIG, Kannur Range. Immediately after

getting the same, the final report will be filed.

After hearing both sides, I think this bail application can be allowed on stringent conditions. Admittedly, the investigation of the case is almost over.

The draft charge is already submitted before the DIG by the Investigating Officer. In such circumstances, the continued detention of the petitioner

may not be necessary in the facts and circumstances of the case. Of course, the allegations against the petitioner are very serious. But the petitioner

cannot be detained like this when the investigation is also almost over.

Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions.

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.

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.

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:

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.

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.

Petitioner shall not leave India without permission of the jurisdictional Court.

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.

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.

The petitioner shall appear before the Investigating Officer on all Mondays at 10 a.m for a period of three months.

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.