Pradumn, Son Of Om Prakash vs The State Of Kerala
2023 Latest Caselaw 10535 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     MONDAY, THE 16TH DAY OF OCTOBER 2023 / 24TH ASWINA, 1945
                      BAIL APPL. NO. 6070 OF 2023
   AGAINST THE ORDER/JUDGMENT SC 150/2021 OF FAST TRACK SPECIAL
                           COURT, PERUMBAVOOR
PETITIONER/S:

            PRADUMN, SON OF OM PRAKASH,
            AGED 24 YEARS
            TUBEWELL KE, DAKSHIN TARAF, DUBEYPUR, JALALPUR,
            DISTRICT JAUNPUR, UTTAR PRADESH, PIN - 222136

            BY ADVS.
            K.J.JOSEPH (ERNAKULAM)
            ANSU VARGHESE


RESPONDENT/S:

    1       THE STATE OF KERALA ,
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
            AT ERNAKULAM., PIN - 682031

    2       XXXXXXXXXX
            XXXXXXXXXX XXXXXXXXXX

            BY ADVS.
            PUBLIC PROSECUTOR
            No Advocate


OTHER PRESENT:

            SRI K.A.NOUSHAD (SR PP)




     THIS   BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A. No.6070/2023                         -2-

                                     ORDER

The petitioner is the accused in Crime No.507/2020 of Infopark Police

Station, Ernakulam District which is now pending as SC 150/2021 on the file of the

Fast Track Special Court, Perumbavoor.

2. The allegation against the petitioner is that on 06-10-2021 at 5 p.m the

petitioner trespassed into the house of the de facto complainant and committed

rape on the minor daughter of the de facto complainant when the de facto

complainant and others were not at home. Following investigation a final report

was filed alleging the commission of offence punishable under Sections 450, 323,

354A (2), read with 354A (1) (i), 354 (B), 376 (2) (i) and 376 AB of the Indian Penal

Code and Section 4 (2) read with 3 of Protection of Children from Sexual Offences

Act, 2012 (the POCSO Act) on the basis of tainted investigation.

3. The learned counsel appearing for the petitioner would submit that the

petitioner has been in custody from 07-10-2020 and therefore the petitioner has

completed more than 3 years in custody. It is submitted that the trial of SC

No.150/2021 is progressing and the victim has not even identified the

petitioner/accused in the dock. Learned counsel for the petitioner also places

reliance on the judgment of the Supreme Court in R.D. Upadhyay v. State of

Andhara Pradesh and others; (1996) 3 SCC 422 to contend that when the

accused has been in custody as an under trial prisoner for substantially long period,

he must be granted bail even if the offences alleged are those of a grave nature. It is

submitted that going by the aforesaid judgment, the right to life under Article 21 of

the Constitution of India includes right to a speedy trial and where the accused has

spent substantial period as an under trial prisoner, his right under Article 21 of the

Constitution of India is affected. It is submitted that the same proposition has been

reiterated by the Supreme Court in Satender Kumar Antil v. Central Bureau

of Investigation an another; (2022 ) 10 SCC 51. Specific reliance is placed by

the learned counsel on paragraphs 9, 13 and 16 of the aforesaid judgment, which

reads as follows;

9. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial. The word "bail" has been defined in the Black's Law Dictionary, 9th Edn., pg.160 as:-

"A security such as cash or a bond; esp., security required by a court for the release of a prisoner who must appear in court at a future time."

xxx xxx xxx

13. Innocence of a person accused of an offense is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the Court. Thus, it is for that agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied.

xxx xxx xxx

16. The Supreme Court of Canada in Corey Lee James Myers v. Her Majesty the Queen, (2019 SCC 18), has held that bail has to be considered on acceptable legal parameters. It thus confers adequate discretion on the Court to consider the enlargement on bail of which unreasonable delay is one of the grounds. Her Majesty the Queen v. Kevin Antic and Ors., (2017 SCC 27):

"The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre- trial stage of the criminal trial process and safeguards the liberty of accused persons. This right has two aspects: a person charged with an offence has the right not to be denied bail without just cause and the right to reasonable bail. Under the first aspect, a provision may not deny bail without "just cause" there is just cause to deny bail only if the denial occurs in a narrow set of circumstances, and the denial is necessary to promote the proper functioning of the bail system and is not undertaken for any

purpose extraneous to that system. The second aspect, the right to reasonable bail, relates to the terms of bail, including the quantum of any monetary component and other restrictions that are imposed on the accused for the release period. It protects accused persons from conditions and forms of release that are unreasonable.

While a bail hearing is an expedited procedure, the bail provisions are federal law and must be applied consistently and fairly in all provinces and territories. A central part of the Canadian law of bail consists of the ladder principle and the authorized forms of release, which are found in S.515(1) to (3) of the Criminal Code. Save for exceptions, an unconditional release on an undertaking is the default position when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, which must be adhered to strictly: release is favoured at the earliest reasonable opportunity and on the least onerous grounds. If the Crown proposes an alternate form of release, it must show why this form is necessary for a more restrictive form of release to be imposed. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a judge to order a more restrictive form without justifying the decision to reject the less onerous forms. A recognizance with sureties is one of the most onerous forms of release, and should not be imposed unless all the less onerous forms have been considered and rejected as inappropriate. It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. When cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. The judge is under a positive obligation to inquire into the ability of the accused to pay. Terms of release under S.515(4) should only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. They must not be imposed to change an accused person's behaviour or to punish an accused person. Where a bail review is requested, courts must follow the bail review process set out in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328."

4. The learned Public Prosecutor vehemently opposes the grant of bail. It

is submitted that the allegations against the petitioner are extremely serious. It is

submitted that the allegation is that the petitioner committed rape on a mentally

retarded girl aged 8 years by trespassing into her house while her parents were not

available in the house. It is submitted that the statement of the victim and also the

medical evidence clearly corroborates the version of the victim that she was

subjected to rape. It is submitted that the trial of the case is in the final stage and

therefore it may not be conducive to release the petitioner on bail at this stage. It is

submitted that the petitioner is a native of Utter Pradesh.

5. Having heard Adv. Birendra Singh, learned counsel appearing for the

petitioner and the learned Public Prosecutor, I am of the opinion that the petitioner

cannot be granted bail. Allegation against the petitioner are extremely serious.

Even though the learned counsel for the petitioner states that the petitioner was not

identified in the dock by the victim, I must take note of the fact that the victim is

stated to be a mentally retarded girl who was subject to rape at a time when she was

8 years old. While it is true that long incarceration as an under trial prisoner is a

strong ground to grant bail, the court cannot, but consider the heinousness of the

offence and the chance of the petitioner /accused absconding, if granted bail. While

it is true that the petitioner has been in custody for nearly 3 years, that by alone

cannot be a ground to grant bail to the petitioner. I take note of the submission of

the learned Public Prosecutor that the trial is at the final stage. Therefore I am not

inclined to accept the contention of the learned counsel for the petitioner based on

they decision of the Supreme Court in R.D. Upadhyay (supra) and Satender

Kumar Antil (supra).

Bail application is dismissed. However, considering the submission of the

learned Public Prosecutor that the trial is in final stage, I direct that the trial of S.C.

No.150/2021 on the file of the Fast Track Special Court, Perumbavoor shall be

completed within a period of two months from today.

Sd/-

GOPINATH P.

JUDGE AMG

APPENDIX OF BAIL APPL. 6070/2023

PETITIONER ANNEXURES

Annexure 1 CERTIFIED COPY OF ORDER DATED 26TH JULY 2021 IN CMP NO.650 OF 2021 IN SC 150 OF 2021 BEFORE ADDL.

DISTRICT COURT, ERNAKULAM