Vishnu Rajan vs State Of Kerala

C.S.Dias, J

The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'), by the sole accused in Crime No.357/2024 of the Kuttampuzha Police Station, Ernakulam, which is registered against him for allegedly committing the offences punishable under Sections 354, 354A(1)(i) of the Indian Penal Code (in short, 'IPC') and Section 8 r/w Section 7 of the POCSO Act. The petitioner was arrested and remanded to judicial custody on 31.07.2024.

The essence of the prosecution case is that: the accused enticed the victim, a 14 year old girl and his neighbour, and took her to his rented house, kissed her and groped her breast, and committed sexual assault on her and also outraged her modesty. Thus, the accused has committed the above offences.

Heard; Sri.Peeyus A.Kottam, 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. There is no material to substantiate the petitioner's culpability in the crime. The petitioner is a 23 year old boy without any criminal antecedents. In any given case, the petitioner has been in judicial custody for the last nearly two months, the investigation in the case is complete and the charge sheet has been filed on 30.08.2024. Therefore, the petitioner may be enlarged on bail.

The learned Public Prosecutor opposed the application. He submitted that there are incriminating materials to substantiate the petitioner's involvement in the crime. If the petitioner is granted an order of pre-arrest bail, there is a likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed.

The prosecution case is that the petitioner had enticed the victim and taken her to a nearby house and committed sexual assault on her and also outraged her modesty. The fact remains that the petitioner has been in judicial custody for the last nearly two months, the investigation in the case is complete and the charge sheet has been filed on 30.08.2024.

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 Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has reiterated 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”.

On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last nearly two months, the investigation in the case is complete and the charge sheet has been filed and furthermore 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 third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 357/2024.

(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) 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.

(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(vii) 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].

(viii) 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.