Kerala High Court
Xxx vs State Of Kerala on 9 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
Bail Appl..No.2989 OF 2021
CRIME NO.948/2020 OF Vellikulangara Police Station , Thrissur
PETITIONER/S:
XXX
AGED 56 YEARS, XXX
THRISSUR
680684
BY ADV. SRI.N.L.BITTO
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
682031
2 XXX
XXX
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SRI.SYAMJIRAM, PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
09.04.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.2989 of 2021
-------------------------------
Dated this the 9th day of April, 2021
ORDER
This is the 4th bail application filed by the petitioner,
who is the accused in Crime No. 948 of 2020 of
Vellikulangara Police Station. The above case is registered
against the petitioner alleging offences punishable under
Sections 447, 376(2)(f) and 376(3) IPC and Section 4(2) r/w.
Section 3(b)(d), Section 6(l) r/w. Section 5(n) and Section 8
r/w. Section 7 of the Protection of Children from Sexual
Offences Act (for short 'POCSO Act') is also alleged.
2. The prosecution case is that the petitioner who is
the maternal uncle of the victim, who is a minor girl aged 13
years, committed raped on her by trespassing into the
ancestral property of the victim on 13.10.2020. The
petitioner was arrested on 2.11.2020.
3. Heard the counsel for the petitioner and the
learned Public Prosecutor.
4. The counsel for the petitioner submitted that the
petitioner is in custody from 2.11.2020 onwards. Now, the
final report is already filed and the petitioner is ready to
abide any conditions, if this Court grant him bail. The
Public Prosecutor, after getting instructions, submitted
that the final report is already filed and the State has no
objection in releasing the petitioner on stringent
conditions. When this matter came up for consideration on
7.4.2021, this Court passed the following order :
"The learned Public Prosecutor will instruct the
investigating officer in crime No.948/2021 to issue a
notice to the victim in this case informing that the bail
application is posted for final hearing on 9.4.21. The
Registry will get a report from the lower court about the
present stage of the case.
The learned Public Prosecutor will get instructions
also. Issue a copy of this order to the learned Public
Prosecutor today itself.
Post on 9.4.2021"
5. The Public Prosecutor submitted that notice is
already issued to the victim in this case. There is no
appearance for the victim. The I Addl. District and Sessions
Judge, Thrissur forwarded a report before this Court,
which is extracted hereunder :
"With reference to the above, I humbly submit the
following before the Hon'ble High Court of Kerala as
directed.
Crime No.948/2021 of Vellikulangara Police is not a
case pending on the file of this court.
In crime No.948/2020 of Vellikulangara Police, final
report has been filed and the case has been taken into file
as SC 2/2021. The accused in the case is an under trial
prisoner. Report of forensic examination has not been
received so far. The case stands posted to 20.04.2021 for
chemical report."
6. From the above, it is clear that there is no
chance for the commencement of the trial in the immediate
future. The final report is already filed. The State also
submitted that the petitioner can be released on stringent
conditions. But, the allegation against the petitioner is very
serious. The petitioner is aged 55 and the victim in this
case is aged 13. The allegation is that the petitioner
sexually abused the victim girl, aged 13. The victim girl is a
close relative of the petitioner. Therefore, there can be a
direction to the petitioner not to enter the jurisdictional
limit of Vellikulangara Police Station, till the victim in this
case is examined by the trial court, during the trial, except
with the permission of the jurisdictional court. With this
condition, the petitioner can be released on bail.
7. 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. Now the 2 nd wave of the
pandemic is spreading.
8. 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:
1. Petitioner shall be released on
bail on executing a bond for Rs.50,000/-
(Rupees Fifty Thousand only) with two
solvent sureties each for the like sum to
the satisfaction of the jurisdictional
Court.
2. The petitioner shall appear
before the jurisdictional court as and
when required. The petitioner 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/her from
disclosing such facts to the Court or
to any police officer.
3. Petitioner shall not leave India
without permission of the jurisdictional
Court.
4. Petitioner shall not commit an
offence similar to the offence of which he
is accused, or suspected, of the
commission of which he is suspected.
5. 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.
6. The petitioner shall not enter
the jurisdictional limit of Velllikulangara
Police Station, Thrissur District till the
victim in this case is examined by the trial
court, without the permission of the
Jurisdictional court.
7. 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.
SD/-
P.V.KUNHIKRISHNAN, JUDGE
SKS
