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2021 DIGILAW 491 (KER)

X v. State of Kerala Rep. by Public Prosecutor, High Court of Kerala

2021-05-07

P.V.KUNHIKRISHNAN

body2021
ORDER : 1. This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference. 2. The petitioner is the accused in Crime No. 585/2021 of Muvattupuzha Police Station. The above case is registered against the petitioner alleging offences punishable under Secs. 3 and 4 of the POCSO Act. 3. The prosecution case is that the petitioner took a minor girl aged 17½ years to a hotel at Athirappally. It is alleged that the petitioner kissed on cheek of the defacto complainant and touched on her right breast and had sexual intercourse. Hence, it is alleged that the accused committed the abovesaid offences. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that the petitioner and the victim were in love. The counsel submitted that the parents of the victim filed an affidavit before this Court as Annexure-1, in which they stated that they decided to conduct marriage between the petitioner and the victim once she attained the age of majority. According to the parents, they have no objection in granting bail to the petitioner. The Public Prosecutor opposed the bail application. 5. It is true that the allegation against the petitioner is very serious. But the parents filed a notary attested affidavit before this Court saying that once the victim is major, they will conduct her marriage with the petitioner. Simply because such an affidavit is filed, the offence will not be wiped off. But, in the facts and circumstances of this case, I think bail can be granted. 6. Moreover, the 2nd wave of COVID-19 is spreading in the country and the citizens are facing serious difficulties. In the state of Kerala, the 2nd wave of the pandemic is creating lot of problems and even the day-to-day life of the citizens are affected. Everyday, about 25,000 people are tested positive with COVID-19. In such circumstances, this Court has to consider this fact also while considering bail applications. The life is more important than anything. Therefore, I am considering this bail application based on the above pandemic situation. 7. Everyday, about 25,000 people are tested positive with COVID-19. In such circumstances, this Court has to consider this fact also while considering bail applications. The life is more important than anything. Therefore, I am considering this bail application based on the above pandemic situation. 7. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition (C) No. 1 of 2020) and a Full Bench of this Court in W.P. (C) No. 9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons. These happened during the 1st wave of COVID-19 season. 8. 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. vs. 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. 9. 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. The petitioner shall appear before the Investigating Officer within three weeks from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer proposes to arrest the petitioner, he shall be released on bail executing a bond for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise 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. 4. The petitioner shall not leave India without permission of the Court. 5. The petitioner shall not commit any offence similar to the offence alleged in this case. 6. 4. The petitioner shall not leave India without permission of the Court. 5. The petitioner shall not commit any offence similar to the offence alleged in this case. 6. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid-19 pandemic. 7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court.