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Synopsis

The Kerala High Court has granted bail to a man accused of sexually abusing his cousin brother’s minor daughter. The court granted bail to the accused, observing that he has been in judicial custody for the past nine months, the investigation has been completed, the charge sheet has been filed, and there is no immediate likelihood of the trial commencing.

The court, presided over by Justice C.S.Dias, was hearing a case in which the accused faced charges under Sections 376(3) [raping a woman under 16 years of age], 376(2)(f)(n) [committing rape repeatedly on the same woman], 354(A)(i)(ii) [sexual harassment], and 354(B) [Assault or use of criminal force to woman with intent to disrobe] of the Indian Penal Code, along with Sections 4(2) read with 3(a) [penetrative sexual assault], 6(1) read with 5(l)(n) [aggravated penetrative sexual assault by relative], 8 read with 7[sexual assault], 10 read with 9(l)(n) [aggravated sexual assault by relative], and 12 read with Section 11(iii) [sexual harassment by showing pornography to minor] of the Protection of Children from Sexual Offences (POCSO) Act. The petitioner was arrested and remanded to judicial custody on January 6, 2024.

According to the prosecution's case, the accused is the cousin of the survivor’s father. In April 2018, the survivor, who was studying in the 3rd standard, visited the accused’s house with her grandmother and stayed there for 15 days. During this time, the accused allegedly committed rape on the minor on multiple occasions and also showed her obscene videos.

The accused (petitioner), represented by Advocate Arun V.G., contended that he was being falsely implicated due to animosity between family members. It was also highlighted that the incident was alleged to have occurred in 2018, however, the First Information Report (FIR) was registered in 2024, which, according to the petitioner “proves the falsity and frivolity in the crime.” It was further argued that the petitioner was a law abiding citizen with no criminal antecedents.

The bail application was opposed by the Public Prosecutor Seetha S., appearing for the State. It was argued that there was substantial incriminating evidence to establish the petitioner’s involvement in the crime. Furthermore, it was contended that the petitioner committed a heinous offence by carrying out penetrative sexual assault on the survivor. If released on bail, there is a likelihood that the petitioner may intimidate the survivor and tamper with the evidence. it was also argued that granting bail would send a wrong message to society. Therefore, the application should be dismissed.

The court acknowledged that the allegations against the petitioner are undoubtedly serious and grave. However, it noted that the petitioner has been in judicial custody for the past nine months, the investigation is complete, and the charge sheet was filed on February 27, 2024. Additionally, the petitioner has no prior criminal record, and there is no likelihood of the trial commencing in the near future.

Referencing precedents established by the Supreme Court in the cases of Manish Sisodia v. Directorate of Enforcement [2024], Jalaluddin Khan v. Union of India [2024], and Prabir Purkayastha v. State (NCT of Delhi) [2024], the High Court emphasised that “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.”

In light of these observations, the court concluded that the petitioner is entitled to bail. The court, therefore, granted the bail application, subject to stringent conditions. However, it clarified that these observations are solely for the purpose of deciding the bail application and shall not affect the merits of the case.

 

Cause Title: XXXXXXXXXX v State of Kerala [BAIL APPL. NO. 3804 OF 2024]