Sudhi C P vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the second accused in Crime No.4/2024 of the Kodenchery Police Station, Kozhikode, which is registered against two accused persons for allegedly committing the offences punishable under Sections 376(3), 376-DA, 376(2)(n), 363, 366, 366-A, 342, 354-A(2) of the Indian Penal Code, 1860, and Sections 3(a) read with Section 4(2) and 5(g) & (l) read with Section 6(1) read with Section 5(g) of the Protection of Children from Sexual Offences Act, 2012. The petitioner was arrested and remanded to judicial custody on 10.01.2024.

The prosecution case, in brief, is that: on 22.04.2023, the accused Nos.1 & 2, who were employees of a stage carriage bus bearing registration No.KL-59/5999, kidnapped the victim, a minor girl aged 13 years, and the first accused committed rape and penetrative sexual assault on the victim, and the second accused groped her breasts, and kissed her, and committed sexual assault on her, and outraged her modesty. Thus, the accused have committed the above offences.

Heard; Sri. S. Rajeev, the learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, 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. A reading of the First Information Report [FIR], First Information Statement and 164 Cr.P.C. statement of the victim would substantiate that the allegation of rape as well as aggravated sexual assault is attributed against the first accused. The only allegation against the petitioner is that he had groped the breasts of the victim and outraged her modesty. In any given case, the petitioner has been in judicial custody for the last seven months, the investigation in the case is complete, and the final report has been laid. Furthermore, the petitioner does not have any criminal antecedents. Therefore, the petitioner’s further detention in the crime is unnecessary. 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 there are incriminating materials to substantiate the fact that the petitioner has committed the above offences. Nonetheless, he stated that it was the first accused who committed penetrative sexual assault on the victim, and the petitioner sexually harassed the victim. The principal objection of the Investigating Officer is that, if the petitioner is let off on bail, there is every likelihood of him intimidating the victim and the witnesses and also tampering with the evidence. Hence, the application may be dismissed.

6.On an evaluation of the materials, it can be gathered that the specific overt act alleged against the petitioner is that he had groped the breasts of the victim and kissed her, and committed the offence of outraging the modesty of the victim and committing sexual assault on her. The allegation of committing rape and aggravated penetrative sexual assault is attributed against the first accused. The fact remains that the petitioner has been in judicial custody for the last seven months, the investigation in the case is complete, and the final report has been laid as early as on 11.03.2024. Furthermore, 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.

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.

Similarly, in Jalaluddin Khan v Union of India [2024 INSC 604] the Hon'ble Supreme Court has observed in the following lines:

“21. xxx xxxx xxx 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.”

On an overall consideration of 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 for the last seven months, the investigation in the case is complete, 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. 4/2024.

(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 police station limits of the victim till the conclusion of the trial in Crime No.4/2024, 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 ofbail, 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.