Kamal K.M vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, ( for short 'BNSS') by the sole accused in Crime No.842/2024 of the Ernakulam Town South Police Station, which is registered against him for allegedly committing the offences punishable under Sections 74, 75(1)(i) and 75(2) of the BNSS. The petitioner was remanded to judicial custody on 8.9.2024.

2.The prosecution  case,  in brief, is  that; on 8.9.2024,  at around  16:30  hours, the accused, while travelling in a private bus, had unzipped his trousers and rubbed his genitals against the shoulder of the survivor, who was a fellow passenger in the bus. Thus, the accused has committed the above offences.

Heard; Sri. K.R.Vinod, the learned counsel appearing for the petitioner, Smt.Seetha.S, the learned Senior Public Prosecutor and Sri.Manu Roy, the learned counsel appearing for the intervenor/survivor.

The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s involvement in the crime. The Investigating Officer has deliberately incorporated the above offences to see that the petitioner is arrested and incarcerated. It was impossible for the petitioner to have done the alleged acts in a public transport vehicle. The petitioner is a Government school Teacher having an unblemished career. The petitioner is also suffering from post-polio residual paralysis. The petitioner does not have any criminal antecedents. The petitioner has been in judicial custody for the last 44 days and  the investigation in the case is practically complete. Moreover, the intervenor has filed an affidavit stating that she has no objection in the petitioner being enlarged on bail. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also submitted that, if the petitioner is enlarged on bail, there is a likelihood of him intimidating the survivor and tampering with the evidence. Therefore, the application may be dismissed.

The learned counsel for the intervenor submitted that the intervenor has filed Annexue R2(a) affidavit stating that, as the petitioner is a Teacher by profession, she is a student pursuing graduation and aspires to go abroad, she has pardoned the petitioner. Therefore, she has no objection in the petitioner being enlarged on bail.

In the light of the rival submissions made across the Bar, by order dated 14.10.2024, this Court directed the intervenor to be present in the chambers of this Court, to ascertain the genuineness of Annexure R2(a) affidavit sworn in by her.

Consequently, the intervenor appeared in the chambers of this Court on 16.10.2024 and this Court interacted with her. The intervenor stated that she had voluntarily executed Annexure R2(a) affidavit without the force or compulsion of any person. She has no objection in the application being allowed.

The prosecution allegation is that, the petitioner had outraged the modesty of the intervenor in a private bus on 8.9.2024. The fact remains that the petitioner has been in judicial custody for the last 44 days, the investigation in the case is practically complete and 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.

On  a  consideration  of  the  facts, the  rival submissions made across the Bar, and the materials placed on record, particularly on comprehending the fact that the petitioner has been in judicial custody for the last 44  days, the investigation  in  the  case  is   practically complete and the petitioner does not have any criminal antecedents, and  further  that  the  intervenor has  no objection in the petitioner being enlarged on bail, I am of the firm view that the petitioner is entitled to be enlarged on bail. 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 second and fourth Saturday between 9 a.m. and 11 a.m till the filing of the final report. He shall also appear before the Investigating Officer as and when directed;

(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) 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;

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the jurisdictional court;

(vii) 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];

(viii) 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 shall be decided by the competent Court.