XXXX vs State Of Kerala

C.S.Dias, J

The application is filed under Sec.439 of the Code of Criminal Procedure, 1973 (in short, 'Code'), by the sole accused in Crime No.459/2024 of the Kareelakulangara Police Station, Alappuzha, which is registered against him, for allegedly committing the offences punishable under Sections 354 and 354A(1)(i) of the Indian Penal Code (in short, 'IPC') and Sections 8 r/w 7 and 10 r/w 9(m) of the Protection of Children from Sexual Offences Act, 2012 (in short, POCSO Act). The petitioner was arrested and remanded to judicial custody on 18.06.2024.

The gist of the prosecution case is that: on 17.06.2024, while the victim, a 11 year old girl, was proceeding on the road, the accused took her photographs on his mobile phone, and then hugged and kissed her with sexual intention. Accordingly, he outraged her modesty and committed aggravated sexual assault. Thus, the accused has committed the above offences.

Heard; Sri.Leo Sanjo, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations leveled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner's involvement in the crime. The petitioner has been in judicial custody for the last 66 days, the investigation in the case is complete and the final report has been laid on 17.08.2024. Furthermore, the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. He submitted that there are incriminating materials to substantiate the petitioner's involvement in the crime. The petitioner is a native of the State of Andhra Pradesh. If the petitioner is enlarged on bail, there is every likelihood of him fleeing from justice. Therefore, the application may be dismissed.

The prosecution allegation against the petitioner is that he had taken the photographs of the victim on his mobile phone, and then hugged and kissed her. Accordingly, he outraged her modesty and committed sexual assault. The fact remains that the petitioner has been in judicial custody for the last 66 days, the investigation in the case is complete and the final report has been laid. Moreover, the petitioner does not have any criminal antecedents. It is well settled in Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81], that merely because an accused does not have roots in a particular State, the same shall not be a ground to deny bail to an accused.

In Dataram Singh v. State of U.P., [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a 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 State of Kerala v. Raneef, [(2011) 1 SCC 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution.

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 on considering the fact that the petitioner has been in judicial custody for the last 66 days, the investigation in the case is complete and the final report has been laid, and further that 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 second and fourth Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 459/2024.

(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 him 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 where the victim and the witnesses are residing till the conclusion of the trial in Crime No.459/2024, other than for the purpose of reporting before the Investigating Officer;

(vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Alappuzha without the previous permission of the jurisdictional court.

(vii) 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.

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

(ix) 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].

(x) 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.