Ratheesh 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.498/2024 of the Chathannoor Police Station, Kollam, which is registered against him for allegedly committing the offences punishable under Sections 376, 376(2)(f), 376(2)(n), 354 & 354(A)(1)(i) of the Indian Penal Code, 1860, and Sections 6 read with Section 5, 5(l), 5(n), 10 r/w 9(n) of the Protection of Children from Sexual Offences Act, 2012. The petitioner was arrested and remanded to judicial custody on 10.05.2024.

The gist of the prosecution case is that:the accused, who is the stepfather of the victim, a girl who is studying in the 9th standard, made sexual advancement to the victim in April,2024 and committed rape, penetrative sexual assault, and outraged her modesty. Thus, the accused has committed the above offences.

Heard; Sri. Sreeraj M.D., the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime at the instance of the biological father of the victim. The victim has lodged the FIR on a total misconception of the facts. The very fact that the victim has not subjected herself to medical examination proves the falsity in the crime. In any given case, the petitioner has been in judicial custody since 10.05.2024, the investigation in the case is complete, and the final report has been laid on 25.06.2024. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

5.The learned Public Prosecutor opposed the application. The Investigating officer has filed a bail objection report, inter-alia, contending that if the petitioner is let off on bail, there is every likelihood of him intimidating the victim and her witnesses and also tampering with the evidence. There is also a likelihood of the petitioner fleeing from justice. Hence, the application may be dismissed.

6.The prosecution allegation is that the petitioner had committed rape and penetrative sexual assault on his stepdaughter, who is studying in the 9th standard.

On an evaluation of the materials on record, it can be seen that even though the victim had alleged that the petitioner had committed rape and penetrative sexual assault on her, it is evident that the victim has not co-operated with the Investigating Officer and she has not subjected herself to medical examination. Therefore, prima facie there is no material to show, other than the assertion of the victim in the 164 Cr.P.C. statement, that the petitioner committed rape and penetrative sexual assault on the victim. The fact remains that the petitioner has been in judicial custody since 10.05.2024, the investigation in the case is complete, the final report has been laid, and the petitioner does not have any criminal antecedents.

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.

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.

After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that the petitioner has been in judicial custody since 10.05.2024, the investigation in the case is complete and the final report has been laid, and the petitioner does not have any criminal antecedents, 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. 498/2024.

(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.498/2024, 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.