Kerala High Court
Yyyyy vs State Of Kerala on 5 November, 2021
B.A. 8281 of 2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
BAIL APPL. NO. 8281 OF 2021
AGAINST THE ORDER/JUDGMENT IN CRMC 1422/2021 OF SPECIAL COURT
UNDER POCSO ACT, MANJERI, MALAPPURAM
(CRIME NO.37/2021 OF MALAPPURAM VANITHA POLICE STATION)
PETITIONER/ACCUSED No.1:
YYYYY
X
BY ADV MATHEW JAMES
RESPONDENTS/2ND RESPONDENT VICTIM:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
2 X
X
OTHER PRESENT:
PP SRI. C.N PRABHAKARAN
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.8281/2021
2
M.R. Anitha, J.
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B.A. 8281 of 2021
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Dated : 5th November, 2021
ORDER
1. This is an application filed under Section 439 of the Code of
Criminal Procedure, 1973. Petitioner is the sole accused in Crime
No.37/2021 of Malappuram Vanitha Police Station which has
been registered for the offence punishable under Sections 366,
376 (2)(n), 376 (3), 109, 506(i) of IPC and Section 6(1)r/w 5(l),
(m), 16, 17, 21 (1) r/w 19 of the POCSO Act, 2021 and Section
75 and 77 of the Juvenile Justice (Care and Protection) Act, 2015.
2. The prosecution allegation is that the petitioner committed
aggregated penetrative sexual assault upon the victim girl aged
12 years from 2013 till 2020 at the house of the petitioner at
Chettiparambu.
3. The only contention raised by the counsel for the petitioner is
that he has been arrested on 31.7.2021 and 90 days already over
after the remand and hence petitioner is entitled for default bail.
4. It is reported by the learned Public Prosecutor on instruction that
B.A.8281/2021
final report is not yet filed. The learned Public Prosecutor raised
objection initially on the ground that there is non-compliance of
2nd proviso of Section 439 (1) (b) of the Code of Criminal
Procedure, 1973 (in short Code) as per which the High Court or
the court of Session shall before granting bail to a person who is
accused of an offence under Section 376 or Section 376 AB or
Section 376 DA ofSection376 DB of the Indian Penal Code has to
give notice of application for bail to the Public Prosecutor within a
period of 15 days from the date of receipt of notice of such
application. So according to the learned Public Prosecutor, 15
days period was not complied in this case and notice was
received by the Prosecutor only on 26.10.20201 and hence
without complying the period prescribed under the 2 nd proviso to
Section 439 prayer for default bail cannot be entertained.
5. As per the proviso to sub-section 2 of Section 167 of the Code
on expiry of 90 days in the present case,since the offence
punishable is coming under Section 167(2)(a)(i), the accused is
entitled to get released. It is an unfettered right of the accused.
Proviso to subsection 2 of Section167 of the Code is independent
and is not controlled by the 2nd proviso to Section 439 (1)(b).
Though the learned Public Prosecutor will contend that the
B.A.8281/2021
amendment introducing 2nd proviso to Section 439(1)(b) came
into effect only on 21.4.2018, as per the Criminal Law
Amendment Act 2018 and the entitlement for default bail under
Section 167(2) proviso which was in existence earlier will not
have any effect after the introduction of 2 nd proviso to Section
439(1)(b), the contention so advanced not appear to be
acceptable. If at all the law making authority has an intention to
introduce such a bar for default bail, under Section 167(2) proviso
by the introduction of 2nd poviso to Section 439 (1) (b) there
would have a corresponding amendment to Section 167 of the
Code also.
6. The learned Public Prosecutor Sri. Prabhakaran drew my
attention to X v. State of Kerala and Another [(2020(5) KLT
312); ILR 2020(44) Kerala 44] wherein the learned Judge of
this Court dealt with an identical situation. In that case bail
granted by the Special Court under Section 167(2) Cr.P.C was
challenged before this Court by the victim. In that case also the
respondent State raised contentions about the non-compliance of
the provisions under Section 439(1)(b) of the Code. The court by
discussing the provisions of Section 167 Cr.P.C it has been
observed that bail under Section 167(2) of the Code is
B.A.8281/2021
fundamentally different from the bail under Section 437, 438 and
439 of the Code and Section 167(2) grant an indefeasible right
to an accused whereas Section 437, 438 and 439 do not grant
any such right to the accused and grant of bail under those
provisions is only a matter of judicial discretion. On the other
hand, the right of an accused to suit bail under Section 167(2)
accrues upon the default of the investigating officer in concluding
the investigation within the requisite time specified in the
provision.
7. Learned counsel for the petitioner also brought to my attention
Rakesh Kumar Paul v. State of Assam (AIR 2017 SC 3948),
wherein the Apex Court has gone to the extent of holding that an
application for default fail can even be oral and the concerned
court must deal with such application by considering the
statutory requirements, whether the statutory period of filing
charge sheet has expired, whether charge sheet has been filed
and whether accused is prepared to furnish bail. Apex Court
further emphasised that in matters of personal liberty and Article
21 of the Constitution, it is not always advisable to be formalistic
or technical.
8. In Shabul Hameed V. State of Kerala and Others (2021 SCC
B.A.8281/2021
OnLine Ker.239) also was brought to my attention and in that
decision, 2020 (5) KLT 312 was quoted and it has been held that
the victim has no right to be heard while granting default bail to
accused under Section 167(2) Cr.P.C. Chidambaram P. v.
Directorate of Enforcement (2019) 9 SCC 66; (2019) 16
Scale 870) has also been quoted by the learned Judge in
paragraph 11 wherein it has been held that the basic
jurisprudence relating to bail remains the same inasmuch as the
grant of bail is the rule and refusal is an exception so as to ensure
that the accused has the opportunity of securing fair trial.
9. So based on the above I find that the petitioner/accused is
entitled for bail since 90 days period after remand is over and
final report is not yet filed in the allotted time. Hence Bail
Application is allowed on the following conditions.
i) The petitioner shall execute bond for a sum of
Rs.75,000/- (Rupees Seventy Five thousand only)
with two solvent sureties each for the like sum to the
satisfaction of the Court concerned.
ii) The petitioner shall surrender his passport before the
jurisdictional court within ten days from the date of release; if
he does not possess passport, an affidavit shall be filed to that
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effect;
iii) The petitioner shall appear before the Investigating
Officer for interrogation as and when required.
iv) 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 from disclosing such facts to the court or
to any police officer or tamper with the evidence.
v). The petitioner shall not commit any offence while
on bail.
vi). The petitioner shall not enter the residential
premises where the victim in this case is residing.
vii) If any of the above conditions are violated by the
petitioner, the learned Magistrate is empowered to
cancel the bail in accordance with law.
Sd/-
M.R.Anitha, Judge
Al/-5.11.21.
