Kerala High Court
Subineesh vs State Of Kerala on 25 September, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:71293
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2024 / 3RD ASWINA, 1946
BAIL APPL. NO. 7909 OF 2024
CRIME NO.1048/2024 OF KAYAMKULAM POLICE STATION, ALAPPUZHA
PETITIONER:
SUBINEESH
AGED 30 YEARS
S/O. SURENDRAN, SURESH BHAVANAM, VELIYIL MUKKU,
KAPPIL MEKKU MURI, KRISHNAPURAM P.O, KAYAMKULAM,
ALAPPUZHA DISTRICT, PIN - 690502
BY ADV P.G.MANU (MAMMALASSERY)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER
KAYAMKULAM POLICE STATION, KAYAMKULAM,
ALAPPUZHA DISTRICT, PIN - 690502
OTHER PRESENT:
SR PP SRI C S HRITWIK
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
25.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.7909/2024
-:2:-
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ORDER
Dated this the 25th day of September,2024
The application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, by the sole
accused in Crime No.1048/2024 of the Kayamkulam
Police Station, Alappuzha, which is registered against
him for allegedly committing the offences punishable
under Sections 64(1), 115(2), 76 & 332(b) of the
Bharatiya Nyaya Sanhita, 2023. The petitioner was
arrested and remanded to judicial custody on
20.07.2024.
2. The prosecution case, in brief, is that: on
09.07.2024, at around 22:00 hours, the accused
trespassed into the house of the survivor, who is none
other than his paternal aunt (father's brother's wife),
and forcefully disrobed her clothes and committed rape
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on her. Even though the survivor attempted to resist
the attack, the accused caught hold of her hair and
slapped on her cheek. Thus, the accused has
committed the above offences.
3. Heard; Sri. P.G.Manu (Mammalassery), 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 petitioner is the nephew of the survivor's husband.
The survivor's husband was employed abroad. The
petitioner used to help the survivor in the domestic
matters, including picking her up from different places
even at night. The marital relationship between the
survivor and her husband is strained. The petitioner's
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parents attempted to mediate in the matrimonial
dispute. It was out of this animosity that the survivor
has falsely alleged that the petitioner has committed
the above offences. The petitioner is a young man who
is employed in a private bank. Moreover, the petitioner
does not have any criminal antecedent. In any given
case, the petitioner has been in judicial custody for the
last 68 days, the investigation in the case is complete,
and the medical examinations have been conducted.
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 the investigation in the
case is in progress. He also submitted that if the
petitioner is let off on bail, there is every likelihood of
him intimidating the survivor and her witnesses and
also tampering with evidence. Moreover, the
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petitioner's application for bail has been rejected by
the Court of Session by Annexure-2 order. Hence, the
application may also be dismissed.
6. The prosecution case is that the petitioner
trespassed into the house of the survivor and had
committed rape on her.
7. A careful scrutiny of the materials on record,
it is seen that the petitioner and the survivor are
nephew and aunt. There is an allegation that the
matrimonial relationship between the survivor and her
husband is strained, and petitioner's parents attempted
to mediate the dispute, which led to the filing of the
present frivolous complaint. The fact remains that the
petitioner has been in judicial custody for the last 68
days, the investigation in the case is complete,the
medical examinations have been conducted, and the
petitioner does not have any criminal antecedents.
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8. In Bhadres Bipinbhai Sheth vs State of
Gujarat and Another [2015 KHC 4579] has succinctly
culled out the principles to grany orders of pre-arrest
bail in cases involving family disputes It is apposite to
extract the relevant portions of the judgment, which
reads thus:
"23. The principles which can be culled out, for the purposes of
the instant case, can be stated as under:
xxx xxx xxx
(ii) The gravity of charge and the exact role of the
accused must be properly comprehended. Before arrest,
the arresting officer must record the valid reasons which
have led to the arrest of the accused in the case diary. In
exceptional cases, the reasons could be recorded
immediately after the arrest, so that while dealing with
the bail application, the remarks and observations of the
arresting officer can also be properly evaluated by the
Court.
(iii) It is imperative for the Courts to carefully and with
meticulous precision evaluate the facts of the case. The
discretion to grant bail must be exercised on the basis of
the available material and the facts of the particular case.
In cases where the Court is of the considered view that
the accused has joined the investigation and he is fully
cooperating with the investigating agency and is not
likely to abscond, in that event, custodial interrogation
should be avoided. A great ignominy, humiliation and
disgrace is attached to arrest. Arrest leads to many
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serious consequences not only for the accused but for the
entire family and at times for the entire community.
Most people do not make any distinction between arrest
at a pre - conviction stage or post - conviction stage.
(iv) There is no justification for reading into S.438 CrPC
the limitations mentioned in S.437 CrPC. The plentitude
of S.438 must be given its full play. There is no
requirement that the accused must make out a "special
case" for the exercise of the power to grant anticipatory
bail. This virtually, reduces the salutary power conferred
by S.438 CrPC to a dead letter. A person seeking
anticipatory bail is still a free man entitled to the
presumption of innocence. He is willing to submit to
restraints and conditions on his freedom, by the
acceptance of conditions which the Court may deem fit to
impose, in consideration of the assurance that if arrested,
he shall be enlarged on bail."
9. 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
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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.
10. Similarly, in Jalaluddin Khan v Union of
India [2024 INSC 604] has observed in the following
lines:
"21. xxx 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
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in deserving cases, it will be a violation of the rights guaranteed
under Article 21 of our Constitution."
11. 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 68 days, the investigation in the case is
complete, the medical examinations have been
conducted, and 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
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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.1048/2024.
(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 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
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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.
(vi) Applications for deletion/modification of the bail
conditions shall be moved and entertained by
the court below.
(vii) 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].
(viii)The observations made in this order are only
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for the purpose of considering the application
and the same shall not be construed as an
expression on the merits of the case to be
decided by competent Courts.
Sd/-
C.S.DIAS,JUDGE
DST/25.09.24 //True copy//
P.A. To Judge
