Kishore E S vs State Of Kerala
2024 Latest Caselaw 30344 Ker

Kerala High Court

Kishore E S vs State Of Kerala on 25 October, 2024

Author: C.S.Dias

Bench: C.S.Dias

BAIL APPL. NO. 8597 OF 2024
                                 1


                                                2024:KER:79466
           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

   FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946

                   BAIL APPL. NO. 8597 OF 2024

  CRIME NO.710/2024 OF Chingavanam Police Station, Kottayam

     AGAINST THE ORDER/JUDGMENT DATED 03.10.2024 IN SC NO.670

OF 2024 OF FAST TRACK SPECIAL COURT, CHANGANASSERY

PETITIONER/S:

          KISHORE E S
          AGED 33 YEARS
          S/O E.K.SASI, IDATHARAYIL HOUSE, S.N. PURAM P.O,
          KOOROPPADA VILLAGE, NOW RESIDING AT CHINGAVANAM P.O,
          NATTAKAM, KOTTAYAM., PIN - 686013


          BY ADVS.
          NINU M.DAS
          S.A.ANAND




RESPONDENT/S:

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

          SR.PP.SMT.PUSHPALATHA M.K.


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 BAIL APPL. NO. 8597 OF 2024
                              2


                                                 2024:KER:79466
                          C.S.DIAS,J
           --------------------------------------------
          Bail Application No.8597 of 2024
          ---------------------------------------------
        Dated this the 25th day of October, 2024


                          ORDER

The application is filed under Section 483 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (in short,

'BNSS'), by the sole accused in Crime No.710/2024 of the

Chingavanam Police Station, Kottayam, which is

registered against him for allegedly committing the

offences punishable under Section 354 of the Indian Penal

Code (in short, 'IPC'), Section 10, 9(m), 9(n), 12 and 11(iii)

of the POCSO Act and Section 75 of the Juvenile Justice

(Care and Protection of Children) Act. The petitioner was

arrested on 25.07.2024.

2. The gist of the prosecution case is that: the

accused, who is the father of the survivor, (a ten year old

girl), while the survivor was studying in the 4 th Standard

and, thereafter, on 01.06.2024, with sexual intention,

rubbed the genitals and groped the breast of the survivor. BAIL APPL. NO. 8597 OF 2024

2024:KER:79466 He also showed obscene videos to the survivor. Thus, the

accused outraged the modesty and committed aggravated

sexual assault on the survivor.

3. Heard; Sri.Ninu M.Das, the learned counsel

appearing for the petitioner and Smt. Pushpalatha M.K.,

the learned Senior Public Prosecutor.

4. The learned counsel for the petitioner submitted

that the petitioner is totally innocent of the accusations

leveled against him. There is no material to substantiate

the petitioner's culpability in the crime. In fact, the

petitioner's wife (survivor's mother) had committed

suicide about 11 years back. It is the petitioner who has

been taking care of the survivor for the last 11 years.

Recently, as requested by the petitioner's mother-in-law,

he sent the survivor to her house for a weekend. Then, his

estranged mother-in-law brain-washed the survivor and

foisted the false case against the petitioner. His mother-in

law's sole intention is to get the custody of the survivor.

The petitioner is a law abiding citizen without any criminal BAIL APPL. NO. 8597 OF 2024

2024:KER:79466 antecedents. In any given case, the petitioner has been in

judicial custody for the last 92 days, the investigation in

the case is complete and the charge sheet has been filed.

The case is numbered as S.C.670/2024 and is pending

before the Fast Track (Special Judge), Changanassery.

There is no likelihood of the trial in the case commencing

in the near future. Moreover, the petitioner is the sole

guardian of the survivor. Therefore, the application may be

allowed.

5. The learned Public Prosecutor opposed the

application. She submitted that, if the petitioner is

enlarged on bail, there is every likelihood of him

influencing the survivor and tampering with the evidence.

Hence, the application may be dismissed.

6. The prosecution case is that the petitioner

outraged the modesty and committed aggravated sexual

assault on his own daughter, while the survivor was

studying in the 4th Standard and thereafter on 01.06.2024.

Admittedly, the petitioner's wife is no more. The child was BAIL APPL. NO. 8597 OF 2024

2024:KER:79466 in the sole custody of the petitioner for the last 11 years.

Even though the alleged incident occurred about four

years back, the FIR is registered only in July 2024. There

is no plausible explanation for the delay. Whether the

petitioner prevented the survivor from reporting the crime

is a matter to be decided after trial. Yet, the petitioner

does not have any criminal antecedents, he has been in

judicial custody for the last 92 days, the investigation in

the case is complete and the charge sheet has been filed.

7. Taking into account the peculiar facts and

circumstances of the case, the theory of false implication

urged before this Court and that the petitioner is the

guardian of the survivor, I am of the view that the

petitioner is entitled to be enlarged on bail.

8. 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 BAIL APPL. NO. 8597 OF 2024

2024:KER:79466 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 is the rule

and jail is an exception.

9. 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 BAIL APPL. NO. 8597 OF 2024

2024:KER:79466 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".

10. After bestowing my anxious consideration to

the facts, the rival submissions made across the Bar and

the materials placed on record, and for the reasons

already mentioned above, I am of the firm view that the

petitioner is entitled to be enlarged on bail. Hence, I am

inclined to allow the 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.50,000/- (Rupees Fifty thousand

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:

i. The petitioner shall appear before the Investigating Officer on alternate Saturdays between 9 a.m. and BAIL APPL. NO. 8597 OF 2024

2024:KER:79466

11 a.m till the conclusion of the trial in Crime No. 710/2024.

ii. The petitioner shall not directly or indirectly make any inducement, threat or procure 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 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 court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

v. In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

BAIL APPL. NO. 8597 OF 2024

2024:KER:79466 vi. Application for deletion/modification of the bail conditions shall be moved and entertained by the jurisdictional Court.

vii. The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case which is to be decided by competent Courts.

Sd/-

C.S.DIAS, JUDGE

rkc/25.10.24 BAIL APPL. NO. 8597 OF 2024

2024:KER:79466 APPENDIX OF BAIL APPL. 8597/2024

PETITIONER ANNEXURES

Annexure A A TRUE COPY OF THE ORDER DATED 03.10.2024 IN CRL. M.P.NO. 340/2024 IN S.C.NO.

670/2024 ON THE FILE OF FAST TRACK SPECIAL JUDGE, CHAGANACHERRY