Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 28TH DAY OF APRIL, 2020 /8TH VAISAKHA, 1942 CRIME NO 33/2020 OF BADIADKA POLICE STATION, KASARGODE DISTRICT PETITIONER/ACCUSED: SHRI. BHASKARAN. AGED 50 YEARS. S/O KALIYA (LATE). RESIDING AT KAYYALAMOOLA HOUSE, P.O MOVVAR, KASARAGOD DISTRICT. BY ADVS. SRI.T.B.SHAJIMON SMT.GOVINDU P RENUKA DEVI RESPONDENTS/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN - 682 031. BY PUBLIC PROSECUTOR SRI.AJITH MURALI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.04.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
This is an application filed under Section 439 of the Code of Criminal Procedure.
2. The petitioner is the accused in Crime No.33 of
2020 of the Badiadka Police Station. The petitioner is alleged to have committed the offences punishable under Sections 354, 351(A) of IPC and Section 8 r/w 7, 10r/w 9(l)(m) and 9(t) of the Protection of Children from Sexual Offences Act, 2012.
3. The prosecution case, in brief, is that: the petitioner
on several days from 21.01.2020, with an intention to outrage the modesty of the victim, a minor girl aged seven years, outraged her modesty and committed aggravated sexual assault on the victim. Thus, the petitioner has committed the above offences.
4. The petitioner was arrested on 30.01.2020. His application for bail was dismissed by the Additional Sessions Judge - I, Kasaragod by order dted 22.02.2020 in Crl.M.P.No.545 of 2020.
5. Heard the learned counsel for the petitioner and the learned Public Prosecutor via video-conferencing.
6. The learned counsel for the petitioner argued that the petitioner is innocent of the accusations levelled against
him. The petitioner is in incarceration for last 89 days. Investigation against the petitioner is complete. No useful purpose would be served in the continuous incarceration of the petitioner. Hence, the petitioner may be enlarged on bail.
7. The learned Public Prosecutor opposed the application.
8. The Hon'ble Supreme Court in Sanjay Chandra v. CBI [2012 (1) SCC 40] held as follows: "27. This Court, time and again, has stated that bail is the
rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution".
9. Recently, the Honourable Supreme Court in Nikesh Tarachand Shah v. Union of India [2018 (11) SCC 1] after
going back to the days of the Magna Carta and after referring to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] has reiterated the same view in Sanjay Chandra v. CBI (supra). Again, in P.Chidamabram v. Directorate of Enforcement [(2019) SCC Online SC 1549] the above proposition has been fortified.
10. After the outbreak of the Novel Corona Virus (COVID
-19) pandemic in the country, the Hon'ble Supreme Court in In Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition (C) No.1 of 2020) observed that the issue of overcrowding of prisons is a matter of serious concern. The State Governments were directed to take adequate measures to de-congest the prisons. Following the above direction, the Home Department, Government of Kerala has promulgated
order dated 25.03.2020, inter alia, directing the release of
under-trial prisoners alleged to have committed offences punishable with punishment for seven years or less. Later, a Full Bench of this Court by order dated 25.03.20202 in W.P.(C) No.9400 of 2020 (Suo Motu), has issued directions to de- congest the prisons in the State, keeping in mind the proposition that bail is the rule and jail is the exception.
11. Having regard to the facts and circumstances of the
case, particularly the fact that the petitioner has been in incarceration for the last 89 days; that the investigation in the case is complete; that the petitioner's continued detention is unnecessary; the legal proposition laid down by the Honourable Supreme Court in the afore cited decisions; and the directions of the Hon'ble Supreme Court and a Full Bench of this Court to decongest prisons in view of Covid-19 pandemic, I am inclined to allow this bail application. .
12. In the result this bail application is allowed, on the following conditions:-
(i) Due to the present National lock-down and
the closure of Courts, the Jail Superintendent, where the petitioner is incarcerated, is directed to release the petitioner on him furnishing his permanent address and phone number and the addresses and phone numbers of his proposed sureties/immediate
relatives. The petitioner shall also file an undertaking to the Jail Superintendent that he and his sureties will execute the bail bond before the jurisdictional Court within one week of its re-opening. The Jail Superintendent after ensuring the compliance of the above conditions, shall release the petitioner to the Station House Officer of the Police Station where the crime has been registered, who shall after noting down the above details, release the petitioner. The Investigating Officer shall keep a close vigil on the whereabouts of the petitioner.
(ii) The petitioner shall within one week from
the re-opening of the jurisdictional Court, if not already re-opened, execute a bond for a sum of Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court.
(iii) The petitioner shall appear before the Investigating Officer on all Saturdays between 10.00 a.m and 11 a.m till final report is filed.
(iv) The petitioner shall not tamper with the evidence or influence the witnesses in the case, in any manner, whatsoever.
(v) The petitioner shall not commit any offence while on bail.
(vi) The petitioner shall not leave the State of Kerala without the permission of the jurisdictional court.
(vii) Needless to mention that, if the petitioner
violates any of the above conditions, the Station House Officer shall be at liberty to approach the jurisdictional Court and file appropriate application seeking for cancellation of the bail. Sd/- C.S.DIAS, JUDGE kkj