Smith. S vs State Of Kerala

This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.

The Petitioner is the accused in crime No.1181/2020 of Kayamkulam Police Station, Alappuzha District. The above case is registered against the

petitioner alleging offences punishable under Section 354A I.P.C. and Section 8 read with 7, Section 10 read with 9 of POCSO Act. The offence

under Section 75 of the Juvenile Justice Act is also alleged.

The prosecution case is that, the accused is the step father of the victim minor girl aged 5 years old. According to the prosecution, the petitioner

used to bath the child and at that time the petitioner touched the stomach and private parts of the victim girl aged 5 years old.

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

The learned counsel for the petitioner submitted that, this is a false case foisted against the petitioner at the instance of his mother-in-law. The

learned counsel for the petitioner submitted that, there is some misunderstanding between the petitioner and his mother-in-law. The learned counsel for

the petitioner submitted that, the mother of the victim, who is the wife of the petitioner is filing an affidavit before this Court saying that, the complaint

is false case alleged against the petitioner. The learned counsel for the petitioner submitted that, the wife of the petitioner deposed in the affidavit that,

she is now pregnant and the petitioner used to help her. The learned counsel for the petitioner submitted that, even if the allegation in the F.I.

statement is accepted, no offence is prima-facie made out. The learned counsel for the petitioner submitted that, the petitioner is ready to abide any

conditions, if this Court grant him bail.

The learned Public Prosecutor opposed the bail application. But, the learned Public Prosecutor made available the statement of the victim girl

recorded under Section 164 Cr.P.C.

After hearing both sides, I think this bail application can be allowed on stringent conditions. I perused the statement of the victim girl given under

Section 164 Cr.P.C. before the Magistrate. In that statement, there is absolutely no allegation against the petitioner. The allegation is against her

biological father. Moreover, the mother of the victim girl, filed an affidavit before this Court, in which she says that, there is no such incident

happened. She says that, there is some misunderstanding between the petitioner and her mother. The complaint is filed at the instance of the mother-

in-law of the petitioner who is her mother. Moreover I perused the F.I. statement given by the victim girl also. It is in a question and answer mode. I

don't want to make any observation about the merit of the case. These are matters to be investigated by the Investigating Officer. Considering the

entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions.

Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the

Hon'ble Supreme Court in Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench of this

Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons.

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:

The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation.

After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail executing a bond for a sum of

Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties for the like sum to the satisfaction of the officer concerned.

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 strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of

social distancing in the wake of Covid 19 pandemic.

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.