Rahul Raj vs State Of Kerala

P.V.Kunhikrishnan, J

This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita.

Petitioner is the accused in Crime No.2038 of 2024 of Kayamkulam Police Station registered alleging offences punishable under Sections 64(2)(i), 123, 96 & 3(5) of the Bharatiya Nyaya Sanhita, 2023 (for short 'BNS'), Section 4 r/w 3 of the Protection of Children from Sexual Offences Act, 2012, Section 77 of the Juvenile Justice (Care and Protection of Children) Act and Sections 3(1)(w)(i) & 3(2)(Va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short 'SC/ST (POA) Act').

The prosecution case is that, accused 1 to 3 served liquor to the minor survivor aged 17 years, who belonged to Scheduled Caste, at the Toddy Shop situated at Kayamkulam and thereafter, took her to the Lake Palace Park in the motorcycle of the petitioner/ 3rd accused and the 1st accused committed rape and penetrative sexual assault on her. It is also alleged that, on 04.11.2024 at 07:00 PM, the 1st accused had served her liquor and committed rape and aggravated penetrative sexual assault on her. Accordingly, the accused persons are alleged to have committed the above mentioned offences. The petitioner was arrested on 25.12.2024.

Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

Counsel for the petitioner submitted that the petitioner is not involved in this case. The counsel submitted that, even as per the prosecution case, there is no allegation of rape against the petitioner, who is the 3rd accused. It is also submitted that the petitioner also belongs to SC/ST community. Hence the offence under the SC/ST (POA) Act is not attracted. The counsel also submitted that the petitioner is ready to abide any conditions if this Court grant him bail.

The  Public  Prosecutor  opposed  the  bail application.

This Court considered the contentions of the petitioner and the Public Public Prosecutor. It is true that the allegation against the petitioner and other accused is serious. But, admittedly there is no allegation of rape against the petitioner, who is the 3rd accused. The petitioner is in custody from 25.12.2024. Considering the facts and circumstances of the case and also considering the fact that the petitioner is in custody from 25.12.2024, I think the petitioner can be released on bail after imposing stringent conditions.

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.

Moreover, in Jalaluddin Khan v. Union of India [2024 KHC 6431], the Hon'ble Supreme Court observed that:

“21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. 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 Art.21 of our Constitution.” (underline supplied)

In Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426], also the Hon'ble Supreme Court observed that:

“53. The Court further 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 our experience, we can say that 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 a 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, this 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 should recognize the principle that "bail is rule and jail is exception".”

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.

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 prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions.