BY AD vs N.L.BITTO

SRI NOUSHAD K A, SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON BAIL APPL. NO.5079 OF 2025 2

11.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.5079 of 2025 ------------------------------- Dated this the 11th day of April, 2025 O R D E R This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS).

2. Petitioner is an accused in Crime No.556/2025 of Irinjalakuda Police Station, registered alleging offences punishable under Sections 332(b), 64(2) (f), 64(2)(m) of the Bharatiya Nyaya Sanhita (BNS), 2023 and Sections 4 r/w 7, 3(a), 6 r/w 5(l), 5(n), 5(j)(ii) of the Protection of Children from Sexual Offences (POCSO Act).

3. The prosecution case is that; on a day in the month of December 2024, and two other occasions, petitioner had committed sexual intercourse with the minor victim having 16 years old minor, at her rented house at Karuvannuer, and she became pregnant by the act. Defacto complaint was aggrieved and thus the crime is registered BAIL APPL. NO.5079 OF 2025 3 against him.

4. Heard counsel for the petitioner and the Public Prosecutor.

5. The counsel for the petitioner submitted that, the allegation against the petitioner is not correct. The petitioner and the victim were in love. Now, the dispute is settled and the mother of the victim filed an affidavit stating that, they have no grievance against the petitioner and they decided to conduct marriage of the petitioner and the victim after they attain majority. Petitioner is in custody from 28.03.2025. Petitioner is ready to abide by any conditions, if this Court grants him bail.

6. Adv. Abhilash, appeared for the second respondent.

7. Public Prosecutor opposed the bail application. He submitted that the statement of the victim and mother is recorded. It is submitted that the matter is settled.

8. This Court considered the contentions of the petitioner and the Public Prosecutor. The petitioner is in BAIL APPL. NO.5079 OF 2025 4 custody from 28.03.2025. Simply because the matter is settled, this Court cannot grant bail to the petitioner, because the offences alleged are serious. But considering the period of detention and also considering the age of the petitioner, I think, the petitioner can be released on bail after imposing stringent conditions.

9. 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], 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.

10. Moreover, in Jalaluddin Khan v. Union of India [2024 KHC 6431], the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special BAIL APPL. NO.5079 OF 2025 5 Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If BAIL APPL. NO.5079 OF 2025 6 the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied)

11. In Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426], also the Hon'ble Supreme Court observed that: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well - settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby BAIL APPL. NO.5079 OF 2025 7 adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception". 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. 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.

2. 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 BAIL APPL. NO.5079 OF 2025 8 case so as to dissuade her from disclosing such facts to the Court or to any police officer.

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. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in Anzar Azeez v. State of Kerala [2025 SCC OnLine KER 1260] is applicable in this case also.

6. If any of the above conditions are violated by petitioner, jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution BAIL APPL. NO.5079 OF 2025 9 and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. Sd/- P.V.KUNHIKRISHNAN JUDGE SSG

SRI NOUSHAD K A, SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON BAIL APPL. NO.5079 OF 2025 2

11.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.5079 of 2025 ------------------------------- Dated this the 11th day of April, 2025 O R D E R This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS).

2. Petitioner is an accused in Crime No.556/2025 of Irinjalakuda Police Station, registered alleging offences punishable under Sections 332(b), 64(2) (f), 64(2)(m) of the Bharatiya Nyaya Sanhita (BNS), 2023 and Sections 4 r/w 7, 3(a), 6 r/w 5(l), 5(n), 5(j)(ii) of the Protection of Children from Sexual Offences (POCSO Act).

3. The prosecution case is that; on a day in the month of December 2024, and two other occasions, petitioner had committed sexual intercourse with the minor victim having 16 years old minor, at her rented house at Karuvannuer, and she became pregnant by the act. Defacto complaint was aggrieved and thus the crime is registered BAIL APPL. NO.5079 OF 2025 3 against him.

4. Heard counsel for the petitioner and the Public Prosecutor.

5. The counsel for the petitioner submitted that, the allegation against the petitioner is not correct. The petitioner and the victim were in love. Now, the dispute is settled and the mother of the victim filed an affidavit stating that, they have no grievance against the petitioner and they decided to conduct marriage of the petitioner and the victim after they attain majority. Petitioner is in custody from 28.03.2025. Petitioner is ready to abide by any conditions, if this Court grants him bail.

6. Adv. Abhilash, appeared for the second respondent.

7. Public Prosecutor opposed the bail application. He submitted that the statement of the victim and mother is recorded. It is submitted that the matter is settled.

8. This Court considered the contentions of the petitioner and the Public Prosecutor. The petitioner is in BAIL APPL. NO.5079 OF 2025 4 custody from 28.03.2025. Simply because the matter is settled, this Court cannot grant bail to the petitioner, because the offences alleged are serious. But considering the period of detention and also considering the age of the petitioner, I think, the petitioner can be released on bail after imposing stringent conditions.

9. 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], 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.

10. Moreover, in Jalaluddin Khan v. Union of India [2024 KHC 6431], the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special BAIL APPL. NO.5079 OF 2025 5 Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If BAIL APPL. NO.5079 OF 2025 6 the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied)

11. In Manish Sisodia v. Directorate of Enforcement [2024 KHC 6426], also the Hon'ble Supreme Court observed that: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well - settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby BAIL APPL. NO.5079 OF 2025 7 adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception". 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. 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.

2. 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 BAIL APPL. NO.5079 OF 2025 8 case so as to dissuade her from disclosing such facts to the Court or to any police officer.

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. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in Anzar Azeez v. State of Kerala [2025 SCC OnLine KER 1260] is applicable in this case also.

6. If any of the above conditions are violated by petitioner, jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution BAIL APPL. NO.5079 OF 2025 9 and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. Sd/- P.V.KUNHIKRISHNAN JUDGE SSG