Kishore E S vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'), by the sole accused in Crime No.710/2024 of the Chingavanam Police Station, Kottayam, which is registered against him for allegedly committing the offences punishable under Section 354 of the Indian Penal Code (in short, 'IPC'), Section 10, 9(m), 9(n), 12 and 11(iii) of the POCSO Act and Section 75 of the Juvenile Justice (Care and Protection of Children) Act. The petitioner was arrested on 25.07.2024.

The gist of the prosecution case is that: the accused, who is the father of the survivor, (a ten year old girl), while the survivor was studying in the 4th Standard and, thereafter, on 01.06.2024, with sexual intention, rubbed the genitals and groped the breast of the survivor. He also showed obscene videos to the survivor. Thus, the accused outraged the modesty and committed aggravated sexual assault on the survivor.

Heard; Sri.Ninu M.Das, 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 totally innocent of the accusations leveled against him. There is no material to substantiate the petitioner's culpability in the crime. In fact, the petitioner's wife (survivor's mother) had committed suicide about 11 years back. It is the petitioner who has been taking care of the survivor for the last 11 years. Recently, as requested by the petitioner's mother-in-law, he sent the survivor to her house for a weekend. Then, his estranged mother-in-law brain-washed the survivor and foisted the false case against the petitioner. His mother-in law's sole intention is to get the custody of the survivor. The petitioner is a law abiding citizen without any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last 92 days, the investigation in the case is complete and the charge sheet has been filed. The case is numbered as S.C.670/2024 and is pending before the Fast Track (Special Judge), Changanassery. There is no likelihood of the trial in the case commencing in the near future. Moreover, the petitioner is the sole guardian of the survivor. Therefore, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that, if the petitioner is enlarged on bail, there is every likelihood of him influencing the survivor and tampering with the evidence. Hence, the application may be dismissed.

The prosecution case is that the petitioner outraged the modesty and committed aggravated sexual assault on his own daughter, while the survivor was studying in the 4th Standard and thereafter on 01.06.2024. Admittedly, the petitioner's wife is no more. The child was in the sole custody of the petitioner for the last 11 years. Even though the alleged incident occurred about four years back, the FIR is registered only in July 2024. There is no plausible explanation for the delay. Whether the petitioner prevented the survivor from reporting the crime is a matter to be decided after trial. Yet, the petitioner does not have any criminal antecedents, he has been in judicial custody for the last 92 days, the investigation in the case is complete and the charge sheet has been filed.

Taking into account the peculiar facts and circumstances of the case, the theory of false implication urged before this Court and that the petitioner is the guardian of the survivor, I am of the view that the petitioner is entitled to be enlarged on bail.

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 Honourable Supreme Court has observed in the following lines:

“21. xxxxx 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”.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar and the materials placed on record, and for the reasons already mentioned above, I am of the firm view that the petitioner is entitled to be enlarged on bail. Hence, I am inclined to allow the 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.50,000/- (Rupees Fifty thousand 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 alternate Saturdays between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 710/2024.

ii. The petitioner shall not directly or indirectly make any inducement, threat or procure 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 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. Application for deletion/modification of the bail conditions shall be moved and entertained by the jurisdictional Court.

vii. 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 competent Courts.