Dr Efthickar Ahamed 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.468/2024 of the Thaliparamba Police Station, Kannur, which is registered against the accused for allegedly committing the offences punishable under Sections 354 and 354 (A) (1) (ii) of the Indian Penal Code ( IPC). The petitioner was arrested on 13.5.2024.

The prosecution allegation, in brief, is that; on 13.05.2024, at around 14.30 hours, while the accused and the de facto complainant/victim were in the wave pool of Vismaya Park at Parassinikadavu, the accused groped the breasts of the de facto complainant. Thus, he outraged the modesty of the victim .

Heard; Sri. P.Vijayabhanu, the learned Senior Counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor.

The learned Senior Counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The crime has been registered on a total misconception. The petitioner is an Assistant Professor in the Central University of Kerala. He is the sole breadwinner of his family. He has been in judicial custody for the last 45 days, the investigation in the case is complete and and the final report has been laid. Hence, the petitioner may be enlarged on bail.

The learned Public Prosecutor opposed the application. She submitted that the petitioner is a person with criminal antecedents, since he is involved in a similar crime of the Bekal Police Station. If the petitioner is enlarged on bail, there is every likelihood of him committing similar offences. Therefore, the application may be dismissed. Nonetheless, she did not dispute the fact that the investigation is complete and the final report has been laid before the Judicial First Class Magistrate Court, Thaliparamba.

The prosecution allegation against the petitioner is that, on 13.5.2024, he outraged the modesty of the victim by groping her breast. The fact remains that the petitioner has been in judicial custody for the last 45 days, the investigation in the case is complete, and the final report has been laid before the jurisdictional court.

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.

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.

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. 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.

On an anxious consideration of 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 45 days, the investigation in the case is complete and the final report has been laid, 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. 468/2024.

(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.468/2024, 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 to be decided by competent Courts.