Benson vs State Of Kerala And Anr

This application for regular bail is filed under Section 439 of the Code of Criminal Procedure by the petitioner who is the accused in Crime No. 845

of 2019 of the Viyyur Police Station. In the aforesaid crime, he is accused of having committed offences punishable under Sections 363, 370 (1), 376

and 450 of the Indian Penal Code and under Sections 3, 4, 5, and 6 of the Protection of Children from Sexual Offences Act, 2012.

According to the prosecution, the petitioner is a married man. He contacted the victim, who is a child aged 14 years through social media and

feigned love towards her. It is alleged that sometime in the month of July 2019, the petitioner trespassed into the house of the minor child during night

hours and subjected her to penetrative sexual intercourse. It is further alleged that the petitioner continued with his acts of sexual abuse until

14.10.2019. The minor girl became pregnant. She was then abducted from lawful guardianship and she was taken to various places in the State of

Tamil Nadu and Karnataka, where she was subjected to continuous sexual abuse. The beleaguered parents rushed to this Court and pursuant to

directions issued, the minor child was traced out and she was permitted to go with her parents. Later, the parents had to approach this Court seeking

order to terminate the pregnancy. Directions were issued by this Court and it appears that the child delivered a stillborn child. The petitioner was

arrested in connection with the aforesaid crime on 13.3.2020 and has been in custody since then.

Sri.N.L.Bitto, the learned counsel appearing for the petitioner, submitted that the investigation in the aforesaid case has been completed and the

final report has been laid. It is further submitted that the petitioner is aged only 24 years and he has been in custody for a prolonged period. According

to the learned counsel, the earlier application filed by the petitioner was dismissed by this Court by order dated 1.7.2020. According to the learned

counsel, a person on bail has a better chance to prepare or present his case than one in custody. He would also take pains to remind this Court that the

fundamental postulate of criminal jurisprudence is the presumption of innocence meaning thereby that a person is believed to be innocent until found

guilty. The learned counsel has also referred to the decision of the Apex court in Dataram Singh v. State of Uttar Pradesh [2018 (3) SCC 22 ]and it is

argued that while considering an application for bail, this Court should not be carried away by the severity of the accusations. The learned counsel

submits that a sympathetic view be taken and the petitioner be enlarged on bail.

The learned Public Prosecutor has seriously opposed the prayer. It is submitted that the petitioner is a married man and knowing about the rape of

the minor child, his wife committed suicide. It is submitted that the records reveal that the petitioner had subjected the child to brutal sexual abuse and

the DNA result also shows his involvement. It is submitted that if the petitioner is released, there is every likelihood of him tampering with the

evidence and terrorizing the witnesses.

I have anxiously considered the submissions advanced and have perused the materials which are made available. I am unable to accept the

submission of the learned counsel that the girl was in love with the petitioner and that their relationship was consensual. The apprehension of the

prosecution that the petitioner would terrorize the victim cannot be ruled out.

The principles, which the Court must consider while granting or declining bail, have been stated by the Apex Court in a catena of cases. In Prahlad

Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280], it was held thus:

“The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in

an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the

severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar

to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered

with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail

the legislature has used the words ""reasonable grounds for believing"" instead of ""the evidence"" which means the court dealing with the grant of bail

can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence

in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.â€​

The very same principles are reiterated in State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21] as well.

In a recent judgment of the Hon'ble Apex Court in Mahipal v. Rajesh Kumar @ Polia and Another (judgment dated 5.12.2019 in Crl.A.No.1843 of

2019), it was held that the provisions for being released on bail draws an appropriate balance between public interest in the administration of justice

and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in

compliance with the conditions laid down by the higher courts. The court will have to balance numerous factors that guide the exercise of the

discretionary power to grant bail in a case to case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is

a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail

the evidence on record to come to a conclusive finding.

In the case on hand, the petitioner had subjected a minor child to penetrative sexual abuse. She became pregnant and it was pursuant to orders

issued by this Court that her pregnancy was terminated. The scientific evidence collected by the prosecution reveals that it was the petitioner herein

who had subjected the minor child who was aged just 14 years to sexual abuse. The contention of the prosecution is that if the petitioner is released on

bail at this stage, he would terrorise the child. As held by the Apex Court, the reasonable possibility of the witnesses being tampered with and the

possibility of securing the presence of the accused at the time of trial are valid considerations. The mere fact that the petitioner has been in custody

for some time may not be a reason to allow his application for bail. As held by the Apex Court in Rajesh Ranjan Yadav v. CBI (AIR 2007 SC 451,)

while Article 21 of the Constitution of India is of great importance, a balance must be struck between the right of liberty of the person accused of an

offence and the interest of the society. No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The grant of

bail due to prolonged incarceration cannot be said to be an absolute rule because the grounds of bail must depend upon the contextual facts and

circumstances.

Having considered all the relevant facts, I find no reason to allow this application and grant bail to the petitioner.

This application will stand dismissed.