Kerala High Court

Xxxx vs State Of Kerala on 21 November, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                                             2024:KER:87282

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

               THE HONOURABLE MR.JUSTICE C.S.DIAS

 THURSDAY, THE 21ST DAY OF NOVEMBER 2024 / 30TH KARTHIKA,

                                  1946

                   BAIL APPL. NO. 9063 OF 2024

     CRIME NO.1912/2023 OF Venjaramoodu Police Station,

                         Thiruvananthapuram

      AGAINST      THE   ORDER/JUDGMENT      DATED     IN     Bail   Appl.

NO.3313 OF 2024 OF HIGH COURT OF KERALA

PETITIONER/ACCUSED:

            XXXX
            AGED 46 YEARS
            XXXX, PIN - 695317


            BY ADV SHAJIN S.HAMEED


RESPONDENT/COMPLAINANT:

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



     THIS   BAIL   APPLICATION    HAVING   COME   UP   FOR   ADMISSION   ON

21.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                          2024:KER:87282
BA.No.9063 of 2024

                                   :2:




                            C.S.DIAS, J.
                   ------------------------------------
                     B.A.No.9063 of 2024
                   ------------------------------------
           Dated this the 21st day of November, 2024

                                 ORDER

This is the second application filed under Section

483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by

the sole accused in Crime No.1912/2023 of the

Venjaramoodu Police Station, Thiruvananthapuram, which is

registered against him, for allegedly committing the

offences punishable under Sections 376(2)(f) and 506(i) of

the Indian Penal Code and Section 4(1) r/w 3(a), 6 r/w 5(n),

8 r/w 7 and 10 r/w 9(1)(n) of the Protection of Children from

Sexual Offences Act, 2012 (in short, 'the Act'). The

petitioner was arrested on 24.11.2023.

2. The prosecution allegation, in brief, is that;

the accused, who is the step father of the survivor (a

seventeen year old girl), had sexually assaulted the survivor 2024:KER:87282

in September 2023. The accused groped the breasts of the

survivor and also caressed her genitals. When the survivor

resisted the act of the accused, he left the place and,

thereafter, repeated the said acts on two other occasions.

Subsequently, in October 2023, while the survivor was

standing in the kitchen, the accused caught hold of her,

took her to the bedroom and again caressed her genitals

and then committed penetrative sexual assault on her. The

accused threatened the survivor not to disclose the said

incident to anyone and if she did, he would kill her. Thus,

the accused has committed the above offences.

3. Heard; Sri.Shajin.S.Hameed, the learned counsel

appearing for the petitioner and Smt.Seetha.S, the learned

Public Prosecutor.

4. The learned counsel for the petitioner

submitted that there is a change of circumstance

subsequent to the passing of Annexure-C order because the

investigation case is complete and the charge sheet has 2024:KER:87282

been filed. The petitioner has been languishing in jail for

the last one year. There is no likelihood of the trial in the

case commencing in the near future. Hence, the

application may be allowed.

5. The learned Public Prosecutor opposed the

application. She submitted that the petitioner has

committed a serious crime by committing rape, penetrative

sexual assault and outraging the modesty of his own step-

daughter. If the petitioner is enlarged on bail, there is

likelihood of him intimidating the survivor and tampering

with evidence and therefore, the application may be

dismissed.

6. The prosecution allegation against the

petitioner is that; in September 2023, the petitioner had

committed sexual assault as well as outraged the modesty

of the survivor. Subsequently, in October 2023, the

petitioner committed penetrative sexual assault and

outraged the modesty of the survivor.

2024:KER:87282

7. When the application came up for

consideration on 11.11.2024, this Court had called for a

report from the Fast Track Special Court (Trial Court),

Nedumangadu to ascertain the status of the reasonable

time period required to dispose of S.C.No.5/2025.

8. Pursuant to this order, the Trial Court, by

communication dated 14.11.2024, has informed this Court

that S.C.No.5/2024 stands posted for framing of charges on

23.11.2024. There are 23 witnesses in the crime. The Trial

Court would require at least six months time to dispose of

S.C.No.5/2024.

9. On an analysis of the materials on record, I

prima facie find that the petitioner has committed a serious

crime by committing rape, aggravated sexual assault and

outraging the modesty of his step-daughter. But, the fact

remains that the petitioner has been in judicial custody for

the last one year, the investigation in the case is complete,

medical examination has been conducted and the charge 2024:KER:87282

sheet has been filed. Yet, the trial in the case has not

commenced. Going by the report of the Trial Court, I find

that the there is no likelihood of the trial in the case

commencing in the near future.

10. 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 2024:KER:87282

is the rule and jail is an exception.

11. 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."

2024:KER:87282

12. In Prabir Purkayastha v. State (NCT of Delhi)

[2024 SCC OnLine SC 934], the Honourable Supreme Court

has observed as follows:-

"21. The Right to Life and Personal

Liberty is the most sacrosanct fundamental

right guaranteed under Articles 20, 21 and 22

of the Constitution of India. Any attempt to

encroach upon this fundamental right has

been frowned upon by this Court in a catena

of decisions. In this regard, we may refer to

following observations made by this Court in

the case of Roy V.D. v. State of Kerala[(2022)

SCC OnLine SC 929] "

7. The life and liberty of an

individual is so sacrosanct that it cannot be

allowed to be interfered with except under

the authority of law. It is a principle which

has been recognised and applied in all

civilised countries. In our Constitution Article

21 guarantees protection of life and personal

liberty not only to citizens of India but also to 2024:KER:87282

aliens."

13. After bestowing my anxious consideration

to the facts, the rival submissions made across the Bar, and

the materials placed on record, and the law referred to the

aforesaid decisions and also considering the fact that the

petitioner has been in judicial custody for the last one year,

the investigation in the case is complete, the charge sheet

has been filed, but there is no likelihood of the trial in the

case commencing in the near future, 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:

2024:KER:87282

(i) The petitioner shall appear before the Trial

Court as and when directed.

(ii) The petitioner shall not directly or indirectly

make any inducement or threat to the survivor 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 jurisdictional court at the time of execution

of the bond. If he has no passport, he shall file an affidavit

to the effect before the said court on the date of execution

of the bond;