Balai Kora vs State Of Kerala

This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference.

The petitioner is the accused in Crime No.669 of 2020 of Kalamassery Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 366, 370, 376(2)(n) of IPC and Section 4 read with Section 3(a), Section 6 read with Section 5 (l) and Section 5(j)

(ii) of the POCSO Act.

The prosecution case is that the victim is a minor girl aged 16 years. The accused and the victim are from West Bengal. It is alleged that the accused kidnapped the victim girl from Gasola in Malda District of West Bengal in the month of February, 2020 and the accused resided in house No.XXII/147 of Kalamassery Municipality. It is alleged that, from that house the accused committed rape on the victim girl who is a minor.

She became pregnant. Hence, it is alleged that the petitioner committed the offence.

Heard the counsel for the petitioner and the Public Prosecutor.

The counsel for the petitioner submitted that this is the second bail application filed by the petitioner. The counsel submitted that earlier bail application was withdrawn with liberty to file it again. The counsel submitted that the petitioner was arrested on 25.8.2020. Now 90 days over. The investigation is not over. He is entitled statutory bail under Section 167(2) Cr.P.C.

The Public Prosecutor after getting instructions submitted that the final report is not filed as on today. The Public Prosecutor submitted that the draft charge is submitted before the officer concerned for approval.

I am surprised to see that in a case like this, the final report is not filed even now. Admittedly, the accused is from West Bengal. The presence of the petitioner is necessary for trial. In such cases it is improper on the part of the Investigating Officer in not completing the investigation within 90 days, if there is no other special reasons. But as far as the accused is concered, he is entitled statutory bail under Section 167(2) Cr.P.C. This Court is bound to release the petitioner on bail because admittedly, the petitioner is in custody for 90 days and no final report is filed even now.

Considering the entire facts and circumstances of the case and considering the detention period of the petitioner, I think this bail application can be allowed on stringent conditions.

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.

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.

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:

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:

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.

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.

Petitioner shall not leave India without permission of the jurisdictional Court.

Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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.

The petitioner shall appear before the Investigating Officer on all Mondays at 10 a.m till final report is filed.

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.