Xxx vs State Of Kerala
2021 Latest Caselaw 21308 Ker

BAIL APPL. NO. 8144 OF 2021              1



                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                              BAIL APPL. NO. 8144 OF 2021
     CRIME NO.822/2020 OF Nooranadu Police Station, Alappuzha
   AGAINST THE ORDER/JUDGMENT IN Bail Appl. 5368/2020 OF HIGH
                              COURT OF KERALA, ERNAKULAM
PETITIONER/S:

               XXX
               X

               BY ADVS.
               S.SHANAVAS KHAN
               S.INDU



RESPONDENT/S:

               STATE OF KERALA
               REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
               KERALA, ERNAKULAM.

               SMT. DEEPA NARAYANAN, SR.GP


       THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
29.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 8144 OF 2021          2




                       P.V.KUNHIKRISHNAN, J
                 --------------------------------------------
                        B.A. No.8144 of 2021
                    --------------------------------------
              Dated this the 29th day of October, 2021


                                ORDER

This Bail Application filed under Section 438 of Criminal

Procedure Code was heard through Video Conference.

2. The petitioner is the sole accused in Crime No.

822/2020 of Nooranad Police Station, Alappuzha. The above

case is registered against the petitioner alleging offences

punishable under Secs. 354 of the IPC and Secs.7, 8, 9(l) and

(n) r/w 10 of the Protection of Children from Sexual Offences

Act, 2012.

3. The prosecution case is that the petitioner, who is the

sister's husband of the mother of the victim, taking advantage

of the domestic relationship between the parties and with the

intention to sexually assault the defacto complainant, came to

the house, wherein the grandmother of the defacto

complainant then was staying, kissed on the lips of the defacto

complainant from the bedroom on 15.2.2019 and 14.4.2020.

4. Heard the learned counsel for the petitioner and the

learned Public Prosecutor.

5. The learned counsel for the petitioner submitted that

there is some family dispute between the mother of the victim

and the wife of the petitioner. The counsel submitted that

because of these disputes, this false case is foisted against the

petitioner. The counsel also submitted that the petitioner is a

person suffering from some heart ailments and he produced

Annexure-2 a progress notes issued by the Amrita Institute of

Medical Science and Research Centre. Moreover, the counsel

also submitted that the matter is subsequently settled between

the petitioner and the family of the defacto complainant and

Annexure-3 is the affidavit of the father of the defacto

complainant to show that the matter is settled between the

parties. The counsel submitted that the petitioner already

taken steps to quash the proceedings by filing a petition under

Sec.482 of the Cr.P.C. before this Court. Meanwhile, the Police

is trying to arrest the petitioner.

6. The learned Public Prosecutor opposed the bail

application.

7. When this bail application came up for consideration

on 22.10.2021, this Court directed the Public Prosecutor to get

instructions from the investigating officer to find out how the

matter is settled and also to get a statement from the victim.

The Public Prosecutor made available the statement of the

victim and submitted that even though the matter is settled,

the allegation against the petitioner is very serious. This Court

may not grant bail to the petitioner in a case, in which serious

allegation is raised and the victim is a minor girl.

8. It is true that the allegation against the petitioner is

very serious. But, the main allegation against the petitioner can

be proved only by adducing oral evidence before the Court. The

custodial interrogation of the petitioner may not be necessary.

It is true that, simply because the matter is settled between the

parties subsequent to the registration of the case, the accused

cannot be released on bail. But, I also considered Annexure-3,

the affidavit, while considering the bail application in the

peculiar facts and circumstances of this case. Moreover, I also

considered Annexure-2, the medical report/progress notes of

the petitioner also. I also perused the statement of the victim,

in which she also says that the matter is settled.

9. After hearing both sides, I think this bail application

can be allowed on stringent conditions.

10. 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.

11. 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) The petitioner shall appear before the

Investigating Officer within two weeks from today and

shall undergo interrogation.

2) After interrogation, if the Investigating Officer

propose to arrest the petitioner, he shall be released on

bail executing a bond for a sum of Rs.50,000/-(Rupees

Fifty Thousand only) with two solvent sureties each for

the like sum to the satisfaction of the officer concerned.

            3)      The       petitioner       shall   appear    before    the

     Investigating Officer            for interrogation as and when

required. The petitioner shall co-operate with the

investigation and 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.

4) Petitioner shall not leave India without

permission of the jurisdictional Court.

5) 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.

6) 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.

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