X vs State Of Kerala

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

Petitioner is the 2nd accused in Crime No.2482/2020 of Kilimanoor Police Station. The above case is registered against the petitioner alleging

offences punishable under Sections 354A & 506(i) r/w 34 IPC, Section 7 r/w 8 and Section 16 r/w 17 of the POCSO Act. The other offence alleged

against the petitioner is under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The prosecution case is that the 1st accused with an intention to commit sexual assault on the victim girl aged 11 years, placed the victim on his legs

and kissed her with sexual intent. It is also alleged that the 1st accused touched on the stomach of the victim. It is alleged that the 2nd accused, who is

the petitioner herein, threatened the victim not to disclose the act committed by the 1st accused and thereby abetted the commission of offence.

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

The counsel for the petitioner submitted that the petitioner is the mother of the victim girl. The counsel submitted that the petitioner and his husband

are living separately for the last two years. Several litigations are pending between the petitioner and her husband. The alleged incident in this case

happened in October, 2018 and the first information statement is given only on 26.10.2020. The counsel submitted that this is a false case foisted by

the husband of the petitioner against her.

The learned Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the 1st accused in this case is already arrested

and he is in custody. .

After hearing both sides, I think this bail application can be allowed on stringent conditions. The main allegation is against the 1st accused.

Moreover, the petitioner has got a definite case that this is a false case foisted against her at the instance of her husband with whom the child is now

staying. Moreover, there are litigations pending between the petitioner and the father of the child before the Family Court. I don't want to make any

observation about the merit of the case. The investigating officer is free to investigate the matter in detail. But I think, the custodial interrogation of the

petitioner may not be necessary in the facts and circumstances of the case. Therefore, this bail application is allowed.

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, she shall be released on bail executing a bond for a sum of

Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each 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 she is accused, or suspected, of the commission of which she 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.