Chandran K M vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the sole accused in Crime No.130/2024 of the Peruvannamuzhy Police Station, Kozhikode, which is registered against him for allegedly committing the offences punishable under Sections 376, 376(2)(n) & 376AB of the Indian Penal Code, 1860, and Section 5(c),(l) & (m) read with Section 6(1) & 11(iii) &(iv) read with Section 12 of the Protection of Children from Sexual Offences Act, 2012. The petitioner was arrested and remanded to judicial custody on 07.03.2024.

The prosecution case, in brief, is that: the accused, who is a neighbour of the survivor, a minor girl aged 08 years, repeatedly committed penetrative sexual assault and rape on her by inserting his finger into her genitals. Thus, the accused has committed the above offences.

Heard; Sri. Nidhi Balachandran, the learned counsel appearing for the petitioner and Smt. Pushpalatha M.K., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. He has been falsely implicated in the crime without any cogent material. There is no material to substantiate the petitioner's culpability in the crime. In any given case, the petitioner has been in judicial custody for the last 07 months, the investigation in the case is complete, medical examinations have been conducted, and the charge sheet has been filed on 09.04.2024. Furthermore, the petitioner does not have any criminal antecedents. Therefore, the petitioner’s further detention in the crime is unnecessary. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the petitioner’s involvement in the crime. The survivor has categorically stated that the petitioner has committed penetrative sexual assault on her by inserting his finger into her genitals. If the petitioner is let off on bail, there is every likelihood of him intimidating the victim and the witnesses and also tampering with the evidence. Hence, the application may be dismissed.

The prosecution case is that the petitioner had committed rape and penetrative sexual assault on the survivor, by inserting his fingers into her genitals On a perusal of the report of the Medical Legal Examination of the survivor dated 06.03.2024, prima facie, it shows that the hymen of the survivor is in tact. However, that is a matter to be ultimately decided at the time of trial. Even though the allegations made against the petitioner are serious and grave, the fact remains that he has been in judicial custody since 07.03.2024, the investigation in the case is complete, medical examinations have been conducted, and the charge sheet has been filed on 09.04.2024. Furthermore, the petitioner does not have any criminal antecedents.

Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has 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 its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the 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, the Honourable Supreme 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 recognize the principle that “bail is the rule and jail is an exception.

Similarly, in Jalaluddin Khan v Union of India [2024 INSC 604] the Hon'ble Supreme Court has observed in the following lines:

“21. xxx xxxx xxx 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. 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 modification that the bail can be granted if the conditions in the statute are satisfied. 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 Article 21 of our Constitution.”

In Prabir Purkayastha v. State (NCT of Delhi)[2024 SCC OnLine SC 934], the Honourable Supreme Court has observed as follows:-

“21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. v. State of Kerala[(2022) SCC OnLine SC 929 : 2022 INSC 756]:—

“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”

On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the petitioner has been in judicial custody for the last 07 months, 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. 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 third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 130/2024.

(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 police station limits of the victim till the conclusion of the trial in Crime No.130/2024, 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 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, which is to be decided by the competent Courts.