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 sole accused in Crime No.760/2024 of the Mala Police Station, Thrissur, which is registered against him for allegedly committing the offences punishable under Section 354(I) of the Indian Penal Code and Sections 8 r/w 7 and 10 r/w 9 of the Protection of Children from Sexual Offences Act (in short, ‘Act’). The petitioner was arrested and remanded to judicial custody on 29.07.2024.

2.The concise case of the prosecution is that; on 22.04.2024, at around 18.00 hours, when the victim visited the house of the accused, the accused touched the genitals of the victim, and outraged her modesty and sexually harassed her. Thus, the accused has committed the above offences.

3.Heard; Sri. N.L.Bitto, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor.

4.The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no material to substantiate that the petitioner has committed the above offences. The petitioner and the victim are relatives. It is out of some animosity of the victim’s family that they falsely implicated the petitioner in the crime. The petitioner is only a 20 year old boy, who is pursuing his studies. The petitioner has been in judicial custody for the last 39 days, the investigation in the case is complete and the petitioner does not have any criminal antecedents. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is enlarged on bail, there is every likelihood of him intimidating the victim and the witnesses. Hence, the application may be dismissed.

The prosecution case is that, the petitioner had outraged the modesty of the victim and committed aggravated sexual assault on her. The fact remains that the petitioner has been in judicial custody for the last 39 days, the investigation in the case is complete, and the petitioner does not have any criminal antecedents.

Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has observed 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.

Similarly, in Jalaluddin Khan v Union of India, [2024 INSC 604] the Honourable Supreme Court has observed in the following lines:

“21. xxxxx When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. “Bail is the rule and jail is an exception” is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.”

9.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 39 days, the investigation in the case is complete and 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 alternate Saturday between 9 a.m. and 11 a.m till the filing of the final report. He shall also appear before the Investigating Officer on third Saturday of every month till the conclusion of the trial in Crime No. 760/2024.

(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) The petitioner shall not enter the police station limits where the victim is residing till the conclusion of the trial in Crime No.760/2024, other than for the purpose of reporting before the Investigating Officer;

(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.

(viii) 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].

(ix) 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.