Ismayil vs State Of Kerala

P.V.Kunhikrishnan, J

This bail application is filed under Section 439 of Cr.P.C.

The petitioner is the 1st accused in Crime No.98 of 2024 of Kuttiadi Police Station, Kozhikode. The above case is registered against the petitioner alleging offences punishable under Sections 109, 377 of IPC and Section 4(1)(2), 3, 9(1) 16 of the Protection of Children from Sexual Offences Act 2012.

The prosecution case is that on one day in January 2024 and on one day in September 2023 and also for three days in between these dates, the 1st accused kidnapped the victim minor boy aged 14 years, in a car and a motor cycle and subjected him to penetrative sexual assault. It is submitted that the 1st accused abetted the commission of penetrative sexual assault done by the other four accused on the victim minor boy. Thus the prosecution alleges that the accused committed the aforesaid offences. The petitioner was arrested on 14.02.2024.

Heard the counsel for the petitioner and the Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is in custody from 14.02.2024 onwards. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grant him bail.

The learned Public Prosecutor very seriously opposed the bail application. The learned Public Prosecutor submitted that the accused committed penetrative sexual assault.

This Court considered the contention of the petitioner and the Public Prosecutor. It is true that very serious allegations are levelled against the petitioner. The victim is a minor boy. But it is a fact that the petitioner is in custody from 14.02.2024. The investigation of the case is almost complete. The evidence in this case is oral evidence. In such circumstances, I think this bail application can be allowed on stringent conditions. Since the victim is a minor boy, there is chance on the part of the petitioner to influence the victim. Therefore, there can be a direction to the petitioner not to enter the jurisdictional limit of Kutttiadi Police Station, for a period of 60 days, except for appearing before the investigating officer. With the above condition and other usual conditions, this bail application can be allowed.

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 appear before the investigating officer on all Mondays till final report is filed.

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.

The petitioner shall not enter into the jurisdiction limit of Kuttiadi Police Station for a period of 60 days from the date of his release.

The petitioner shall furnish his place of residence where he is going to reside during the above perioid to the investigating officer with his phone number within one week from the date of his release. I make it clear that the petitioner can enter the jurisdiction limit of the Kuttiadi Police Station for the purpose of investigation when the investigating officer demads his presence.