Vishnu vs State Of Kerala

This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference.

Petitioner is the accused in Crime No.1664 of 2020 of Parassala Police Station, Thiruvananthapuram. The above case is registered against the

petitioner alleging offences punishable under Sections 363, 376(2)(i) IPC & Section 4 r/w Section 3 of the Protection of Children from Sexual

Offences Act (for short 'POCSO Act').

The prosecution case is that on 3.9.2020 at about 10 hours, the petitioner kidnapped the victim minor girl aged 14 and committed sexual assault and

rape on her and thereby committed the above said offences.

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

The counsel for the petitioner submitted that the petitioner and the victim girl are in love. From school days onwards they were in love. The counsel

submitted that the allegation of rape is not correct. The counsel for the petitioner submitted that the parents of the petitioner is aware about the affair.

But the parents of the victim is against this. Because of that a false case is registered against the petitioner. The counsel submitted that the petitioner

is in custody from 24.9.2020 onwards. He is ready to abide any conditions, if this Court grant him bail.

The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that consent is not a factor to be looked into in this case

because the victim in this case admittedly is a minor. The Public Prosecutor submitted that the petitioner may not be released on bail at this stage.

After hearing both sides, I think this bail application can be allowed on stringent conditions, considering the fact the petitioner is in custody from

24.9.2020 onwards. Admittedly, the petitioner is aged 22 and the victim girl is aged about 14 years. The petitioner claims that she is in love with the

victim girl. But that is not a reason to commit sexual offence even if there is any consent from the side of victim. The Public Prosecutor made

available the First Information Statement. In the First Information Statement the victim girl also admit the love affair with the petitioner. But she says

that there is sexual intercourse with the petitioner. That is a matter to be investigated by the investigating officer. I do not want to make any

observation about the merit of the case.

Considering the entire facts and circumstances of the case and considering the detention period of the petitioner, 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:

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.

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.