BY AD vs LEO LUKOSE

O R D E R This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is an accused in Crime No.1319/2023 of Moovattupuzha Police Station, Ernakulam. The above case is registered against the petitioner alleging offences punishable under Sections 447 & 376(2)(n) of the Indian Penal Code, 1860 and Sections 4(1), 3(a), 6, 5l & 5(j)(ii) of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act').

3. The petitioner earlier filed a bail application before this Court as B.A. No.4046/2024 and the same was disposed of by this Court as per order dated 09.01.2025 in the following manner: “Petitioner is the accused in 1319/23 of B.A.No.4523 of 2025 3 Moovattupuzha Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 447 & 376(2)(n) of the IPC and Sections 4(1), 3(a), 6, 5l & 5j (ii) of the POCSO Act.

2. Admittedly the petitioner is not in India now. It is submitted by the counsel appearing for the petitioner that the petitioner is now detained by the Abu Dhabi Crime Investigation Department because of the Red Corner Notice issued by the Interpol.

3. If that be the case, if the petitioner is deported and produced before the jurisdictional court, the petitioner can file appropriate application for bail and if such an application is filed, the jurisdictional court will consider the bail application in accordance with law. With the above observation, this bail application is disposed of. ”

4. Now it is submitted that the petitioner has been brought back to India from Abu Dhabi jail. But his arrest is not recorded. The Public Prosecutor submitted that this bail application is filed under Section 483 of the BNSS and the bail application is not maintainable because the petitioner is not arrested. I think there is force in the argument of the Public Prosecutor. The counsel appearing for the petitioner submitted B.A.No.4523 of 2025 4 that the bail application may be converted as an application filed under Section 482 of the BNSS.

5. Accordingly, this bail application is converted as an application filed under Section 482 of the BNSS.

6. The prosecution case is that the petitioner subjected the defacto complainant to aggravated sexual assault on a day during the first week of November 2022 after having maintained relationship for one year through Instagram. It is alleged that the petitioner impregnated the victim. Hence it is alleged that the accused committed the above said offences.

7. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

8. The counsel for the petitioner submitted that the petitioner was in Abu Dhabi from 11.12.2024 onwards. The allegation that the petitioner impregnated the victim is factually impossible. The counsel submitted that the victim also filed an affidavit before this Court stating that she has no grievance against the petitioner. Annexure - A5 is the affidavit filed by the victim. B.A.No.4523 of 2025 5

9. The Public Prosecutor opposed the bail application.

10. After hearing both sides, I think this bail application can be allowed on stringent conditions. The Investigating Officer can do the needful, including taking a blood sample before releasing the petitioner on bail. The potency test also can be conducted.

11. 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.

12. Recently the Apex Court in Siddharth v. State of Uttar Pradesh and Another [2021(5)KHC 353] considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder. B.A.No.4523 of 2025 6 “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self- esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

13. In Manish Sisodia v. Central Bureau of Investigation [2023 KHC 6961], the Apex Court observed that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case.

14. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, B.A.No.4523 of 2025 7 this Bail Application is allowed with the following directions:

1. After interrogation and other procedural formalities, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on 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 arresting officer concerned.

2. The petitioner shall appear before the Investigating Officer 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. B.A.No.4523 of 2025 8

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

4. 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.

5. Needless to mention, it would be well within the powers of the investigating officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].

6. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by B.A.No.4523 of 2025 9 this Court in Anzar Azeez v. State of Kerala [2025 SCC OnLine KER 1260] is applicable in this case also.

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. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated. Sd/- P.V.KUNHIKRISHNAN, JUDGE DM

O R D E R This Bail Application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is an accused in Crime No.1319/2023 of Moovattupuzha Police Station, Ernakulam. The above case is registered against the petitioner alleging offences punishable under Sections 447 & 376(2)(n) of the Indian Penal Code, 1860 and Sections 4(1), 3(a), 6, 5l & 5(j)(ii) of the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act').

3. The petitioner earlier filed a bail application before this Court as B.A. No.4046/2024 and the same was disposed of by this Court as per order dated 09.01.2025 in the following manner: “Petitioner is the accused in 1319/23 of B.A.No.4523 of 2025 3 Moovattupuzha Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 447 & 376(2)(n) of the IPC and Sections 4(1), 3(a), 6, 5l & 5j (ii) of the POCSO Act.

2. Admittedly the petitioner is not in India now. It is submitted by the counsel appearing for the petitioner that the petitioner is now detained by the Abu Dhabi Crime Investigation Department because of the Red Corner Notice issued by the Interpol.

3. If that be the case, if the petitioner is deported and produced before the jurisdictional court, the petitioner can file appropriate application for bail and if such an application is filed, the jurisdictional court will consider the bail application in accordance with law. With the above observation, this bail application is disposed of. ”

4. Now it is submitted that the petitioner has been brought back to India from Abu Dhabi jail. But his arrest is not recorded. The Public Prosecutor submitted that this bail application is filed under Section 483 of the BNSS and the bail application is not maintainable because the petitioner is not arrested. I think there is force in the argument of the Public Prosecutor. The counsel appearing for the petitioner submitted B.A.No.4523 of 2025 4 that the bail application may be converted as an application filed under Section 482 of the BNSS.

5. Accordingly, this bail application is converted as an application filed under Section 482 of the BNSS.

6. The prosecution case is that the petitioner subjected the defacto complainant to aggravated sexual assault on a day during the first week of November 2022 after having maintained relationship for one year through Instagram. It is alleged that the petitioner impregnated the victim. Hence it is alleged that the accused committed the above said offences.

7. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.

8. The counsel for the petitioner submitted that the petitioner was in Abu Dhabi from 11.12.2024 onwards. The allegation that the petitioner impregnated the victim is factually impossible. The counsel submitted that the victim also filed an affidavit before this Court stating that she has no grievance against the petitioner. Annexure - A5 is the affidavit filed by the victim. B.A.No.4523 of 2025 5

9. The Public Prosecutor opposed the bail application.

10. After hearing both sides, I think this bail application can be allowed on stringent conditions. The Investigating Officer can do the needful, including taking a blood sample before releasing the petitioner on bail. The potency test also can be conducted.

11. 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.

12. Recently the Apex Court in Siddharth v. State of Uttar Pradesh and Another [2021(5)KHC 353] considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder. B.A.No.4523 of 2025 6 “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self- esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

13. In Manish Sisodia v. Central Bureau of Investigation [2023 KHC 6961], the Apex Court observed that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case.

14. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, B.A.No.4523 of 2025 7 this Bail Application is allowed with the following directions:

1. After interrogation and other procedural formalities, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on 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 arresting officer concerned.

2. The petitioner shall appear before the Investigating Officer 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. B.A.No.4523 of 2025 8

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

4. 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.

5. Needless to mention, it would be well within the powers of the investigating officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].

6. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by B.A.No.4523 of 2025 9 this Court in Anzar Azeez v. State of Kerala [2025 SCC OnLine KER 1260] is applicable in this case also.

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. The prosecution and the victim are at liberty to approach the jurisdictional Court to cancel the bail, if any of the above conditions are violated. Sd/- P.V.KUNHIKRISHNAN, JUDGE DM