Kerala High Court

Anthony Swamy vs State Of Kerala on 21 January, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                                           2025:KER:4304
BAIL APPL. NO. 420 OF 2025

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         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

  TUESDAY, THE 21ST DAY OF JANUARY 2025 / 1ST MAGHA, 1946

                     BAIL APPL. NO. 420 OF 2025

CRIME NO.904/2024 OF Kozhinjampara Police Station, Palakkad

     AGAINST     THE    ORDER/JUDGMENT     DATED      IN    Bail   Appl.

NO.9350 OF 2024 OF HIGH COURT OF KERALA

PETITIONER/ACCUSED:

         ANTHONY SWAMY
         AGED 68 YEARS
         KALLAMBILIYAR HOUSE, ELAYATTUKALAM,
         ATTAYAMPATHI, OZHALAPATHY, VADAKARAPATHY,
         PALAKKAD,, PIN - 678556


         BY ADVS.
         RIZWANA A.A.
         AQIB SOHAIL P.S.


RESPONDENT/COMPLAINANT:

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

         SRI NOUSHAD KA, SR PP


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
21.01.2025,    THE    COURT   ON   THE   SAME   DAY    DELIVERED     THE
FOLLOWING:
                                                     2025:KER:4304
BAIL APPL. NO. 420 OF 2025

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                 P.V.KUNHIKRISHNAN, J.
                  --------------------------------
                    B.A. No.420 of 2025
           ----------------------------------------------
         Dated this the 21st day of January, 2025

                             ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the accused in Crime No.904/2024

of Kozhinjampara Police Station. The above case is registered

against the petitioner alleging offences punishable under

Sections 64(1), 65(2), and 63(b) of the Bharatiya Nyaya Sanhita

(for short, BNS) and Sections 4(1), 3(b), 6(1) and 5m of the

Protection of Children from Sexual Offences Act (Amendment)

2017.

3. The prosecution case is that on 26/10/2024,

between 12:00 PM and 1:30 PM, the daughter of the defacto

complainant went to play at the house of the accused, who is a

neighbor. It is alleged that the accused, with the intention to

sexually abuse the survivor, subjected her to severe penetrative

sexual assault by inserting his finger into her genitals. The 2025:KER:4304 BAIL APPL. NO. 420 OF 2025

petitioner was arrested on 27.10.2024.

4. Heard counsel for the petitioner and the Public

Prosecutor. Since the offence under Section 65 of BNS is also

alleged, this Court issued notice to the guardian / parents of the

victim about the pendency of this bail application through the

Investigating Officer. The Public Prosecutor submitted that the

notice is served; but there is no appearance.

5. The counsel for the petitioner submitted that

the petitioner is aged 65 years and it is a false case foisted

against the petitioner. Different contentions are raised in this

bail application. The Public Prosecutor seriously opposed the

bail application. The Public Prosecutor produced the medical

report and the First Information Statement.

6. This Court perused the First Information

Statement. It is true that serious allegations are there. The

victim girl is aged only 3½ years. There is prompt FI Statement

also. But the petitioner is in custody from 27.10.2024. The

investigation is over and the final report is also filed. In such

circumstances, indefinite incarceration of the petitioner may not

be necessary. But, till the main witnesses in this case are 2025:KER:4304 BAIL APPL. NO. 420 OF 2025

examined before the trial court, there can be a direction to the

petitioner not to enter the jurisdictional limit of Kozhinjampara

Police Station except for the purpose of appearing before the

jurisdictional court.

7. Moreover, it is a well accepted principle that

the bail is the rule and the jail is the exception. The Hon'ble

Supreme Court in Chidambaram. P v Directorate of

Enforcement [2019 (16) SCALE 870], after considering all

the earlier judgments, observed that, the basic jurisprudence

relating to bail remains the same inasmuch as the grant of bail

is the rule and refusal is the exception so as to ensure that the

accused has the opportunity of securing fair trial.

8. Moreover, in Jalaluddin Khan v. Union of

India [2024 KHC 6431], the Hon'ble Supreme Court observed

that:

"21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a 2025:KER:4304 BAIL APPL. NO. 420 OF 2025

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 Art.21 of our Constitution." (underline supplied)

9. In Manish Sisodia v. Directorate of

Enforcement [2024 KHC 6426], also the Hon'ble Supreme

Court observed that:

"53. The Court further 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 our experience, we can say that it appears that the trial courts and the High 2025:KER:4304 BAIL APPL. NO. 420 OF 2025

Courts attempt to play safe in matters of grant of bail. The principle that bail is a 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, this 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 should recognize the principle that "bail is rule and jail is exception"."

10. Considering the dictum laid down in the above

decision and considering the facts and circumstances of this

case, this Bail Application is allowed with the following

directions:

1. Petitioner shall be released on bail on

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 jurisdictional Court.