XXXXXXXXXX vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused in Crime No.170/2024 of the Udumbanchola Police Station, Idukki, which is registered against him for allegedly committing the offences punishable under Section 354 A(1)(i) of the Indian Penal Code, 1860, Sections 7, 8, 9(n), 10 & 18 of the Protection of Children from Sexual Offences Act, 2012(for short, ‘POCSO Act’) and under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The petitioner was arrested on 25.03.2024.

The essence of the prosecution case is that: the accused committed sexual assault on the victim (a 12-year-old girl) on 09.03.2024 & 10.03.2024 by groping her breasts and touching other her private areas. The accused is the stepgrandfather of the victim. Thus, the accused has committed the above offences.

Heard; Sri.Subi K. the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor.

The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There are no materials to substantiate the allegations that the petitioner has committed the above offences. The petitioner is the sole breadwinner of his family. The petitioner has been in judicial custody for the last 80 days, the investigation in the case is complete, and the final report has been laid. Therefore, the petitioner’s further detention is unnecessary. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the petitioner's involvement in the case. The petitioner had committed the sexual assault on the victim and outraged her modesty. If the petitioner is released on bail, he would certainly intimidate the victim and the witnesses and also tamper with the evidence, which will be prejudicial to the prosecution. Even though the petitioner had filed a similar application before the Special Court, Thodupuzha, the same was dismissed by Annexure-II order, on the finding that there are materials to establish the petitioner's involvement in the case. Hence, the application may be dismissed.

The prosecution allegation against the petitioner is that on 09.03.2024 & 10.03.2024, he committed sexual assault of the victim by groping her breasts and also touching her private areas. He also outraged her modesty. The fact remains that the petitioner has been in judicial custody for the last 80 days, the investigation in the case is complete, and the final report has been laid. Even though the presumption of innocence cannot be drawn, in view of Section 29 of the POCSO Act, taking into account the fact that nothing further remains in the investigation of the crime and the petitioner has been in judicial custody for the last 80 days, I am of the view that the petitioner’s further detention is unnecessary.

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.

The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. The right to bail cannot be denied merely due to the sentiments of the society.

After bestowing my anxious consideration to 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 80 days, the investigation in the case is complete, the forensic examination is over, and the final report has been laid on 30.04.2024, I am inclined to allow the 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.170/2024.

(ii) The petitioner shall not directly or indirectly make any inducement or threat to the victim or any other witnesses or procure 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 leave the territorial jurisdiction of the Special Court, Thodupuzha, without the previous permission of the jurisdictional court.

(vi) 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.

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