Kerala High Court

Kavil Purushothaman vs State Of Kerala on 30 September, 2024

Author: C.S.Dias

Bench: C.S.Dias

BAIL APPL. NO. 6448 OF 2024
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                                              2024:KER:72603
          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

                THE HONOURABLE MR.JUSTICE C.S.DIAS

 MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946

                   BAIL APPL. NO. 6448 OF 2024

    CRIME NO.342/2024 OF Bekal Police Station, Kasargod

     AGAINST THE ORDER/JUDGMENT DATED 23.07.2024 IN CRMC

NO.708 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT

- I, KASARAGOD / I ADDITIONAL MACT, KASARAGODE

PETITIONER/S:

         KAVIL PURUSHOTHAMAN,
         AGED 63 YEARS
         S/O., LATE KARUNAKARAN, RESIDING AT SIVAPRIYA,
         UDAYAMANGALAM, UDUMA VILLAGE AND POST, HOSDURG
         TALUK, KASARAGOD, PIN - 671319


         BY ADVS.
         K.I.SAGEER
         MUHAMMED YASIL




RESPONDENT/S:

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

         SR.PP.SRI.C.S.HRITHWIK


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
30.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 BAIL APPL. NO. 6448 OF 2024
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                                           2024:KER:72603
                        C.S.DIAS,J
         --------------------------------------------
         Bail Application No.6448 of 2024
        ---------------------------------------------
     Dated this the 30th day of September, 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.342/2024 of

the Bekal Police Station, Kasargod, which is registered

against him for allegedly committing the offences

punishable under Sections 376(2)(n), 376(2)(f) and

376(3) of the Indian Penal Code (in short, 'IPC') and

Sections 6(1), 5(l), 5(m) and 5(n) of the POCSO Act,

2012. The petitioner was arrested on 12.06.2024.

2. The essence of the prosecution case is that:

the accused, who is the paternal grandfather of the

survivor (a four year old girl), in February 2024 had

inserted his fingers into her genitals and committed

aggravated penetrative sexual assault on the survivor.

Thus, the accused has committed the above offences. BAIL APPL. NO. 6448 OF 2024

2024:KER:72603

3. Heard; Sri.K.I.Sageer, the learned counsel

appearing for the petitioner and Sri.C.S.Hrithwik, 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. The

marital relationship between the petitioner's son and his

wife/survivor's mother is strained. It is due to the said

matrimonial litigations, the survivor's mother has

implicated the petitioner in the present crime to

pressurise the petitioner and his son to yield to her

unlawful demands. The petitioner is a 63 year old man

without any criminal antecedents. The petitioner has

treated the survivor only as his grandchild. In any given

case, the petitioner has been in judicial custody for the

last 108 days, the investigation in the case is complete

and the final report has been filed on 08.08.2024. BAIL APPL. NO. 6448 OF 2024

2024:KER:72603 Therefore, the petitioner's further detention is

unnecessary. Hence, the application may be allowed.

5. The learned Public Prosecutor opposed the

application. He submitted that there are incriminating

materials to substantiate the petitioner's involvement in

the crime. Since the petitioner is the paternal grand

father of the survivor, there is every likelihood of him

intimidating the survivor and also tampering with the

evidence. Hence, the application may be dismissed.

6. The prosecution case is that in February 2024

the petitioner had inserted fingers into the genitals of

his granddaughter/survivor. On a prima facie evaluation

of the report of medico-legal examination of the survivor

dated 11.06.2024, I find that the survivor has not

suffered any vaginal, oval or penetrative injury. Similarly

the survivor's female external genitals are also found to

be without any injuries. However, these are all matters

that have to be ultimately decided at the time of trial.

The fact remains that the martial relationship of the

petitioner's son and wife/survivor's mother is estranged. BAIL APPL. NO. 6448 OF 2024

2024:KER:72603 The petitioner is said to be a 63 year old man suffering

from various ailments including acute diabetes. The

petitioner has been in judicial custody for the last 108

days, the investigation in the case is complete and

charge sheet has been filed on 01.08.2024.

Furthermore, the petitioner does not have any criminal

antecedents.

7. In Manish Sisodia v. Directorate of

Enforcement [2024 INSC 595] the Honourable

Supreme Court has reiterated 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 BAIL APPL. NO. 6448 OF 2024

2024:KER:72603 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".

8. 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 aliens."

9. On an overall consideration of the facts, the

rival submissions made across the Bar, and the

materials placed on record, particularly on considering

the fact that the petitioner has been in judicial custody

for the last 108 days, the investigation in the case is BAIL APPL. NO. 6448 OF 2024

2024:KER:72603 complete and the charge sheet has been filed, and

furthermore the petitioner does not have any criminal

antecedents, 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:

(i) The petitioner shall appear before the

Investigating Officer on every third Saturday

between 9 a.m. and 11 a.m till the conclusion of

the trial in Crime No. 342/2024.

(ii) The petitioner shall not directly or indirectly make

any inducement or threat to the victim or her

witnesses or to any person acquainted with the

facts of the case, so as to dissuade them from BAIL APPL. NO. 6448 OF 2024

2024:KER:72603 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) The petitioner shall not enter the police station

limits of the victim till the conclusion of the trial in

Crime No.342/2024, other than for the purpose of

reporting before the Investigating Officer;

(vi) 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.

(vii) Applications for deletion/modification of the bail BAIL APPL. NO. 6448 OF 2024

2024:KER:72603 conditions shall be moved and entertained by the

court below.

(viii) Needless to mention, it would be well within the

powers of the Investigating Officer to investigate

the matter and, if necessary, to effect recoveries on

the information, if any, given by the petitioner even

while the petitioner is on bail as laid down by the

Hon'ble Supreme Court in Sushila Aggarwal v.

State (NCT of Delhi) and another [2020 (1)

KHC 663].

(ix) 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 has to be decided by

the courts of competent jurisdiction.

Sd/-

C.S.DIAS,JUDGE

rkc/30.09.24 BAIL APPL. NO. 6448 OF 2024

2024:KER:72603 APPENDIX OF BAIL APPL. 6448/2024

PETITIONER ANNEXURES