1. The application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the sole accused in Crime No.229/2024 of the Palode Police Station, Thiruvananthapuram, which is registered against him for allegedly committing the offences punishable under Sections 354 A(1), 376(2)(f), 376(2) (i), 376(2)(n) and 506(i) of the Indian Penal Code, Sections 4(2) r/w 3(a), 6 r/w 5(l) 5(n), 8 r/w 7, 10 r/w 9(l)(n) of the Protection of Children from Sexual Offences Act, Section 75 of the Juvenile Justice (Care and Protection of Children) Act and Sections 3(1) (w)(i), 3(2)(v), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act. The petitioner was arrested and remanded to judicial custody on 26.02.2024.

2.The prosecution case, in brief, is that; the accused, who is the stepfather of the survivor, while the survivor was 16 years of age, had committed aggravated sexual assault on her, from the the time she was 13 years of age till 29.07.2023. The accused also threatened the survivor that he would stop his relationship with her mother, if she disclosed the incident. Thus, the accused has committed the above offences.

3. Heard; Sri. Suman Chakravarthy, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.

4. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s culpability in the crime. In fact, the petitioner has been falsely implicated in the case out of the survivor’s previous animosity towards him. In any given case, the petitioner has been in judicial custody for the last 7 months, the investigation in the case is complete, the medical examinations have been conducted and the charge sheet has been filed. Furthermore, the petitioner does not have any criminal antecedents and there is no likelihood of the trial in S.C. No.883/2024 concluding in the near future. Hence, the application may be allowed.

5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that there are incriminating materials to substantiate the petitioner’s involvement in the crime. The petitioner has committed a heinous crime by committing penetrative sexual assault on his stepdaughter, who was only 13 years of age at the time of first incident. If the petitioner is enlarged on bail, there is likelihood of him intimidating the survivor and tampering with evidence. Moreover, it would send a wrong message to the society. Hence, the application may be dismissed.

6. The prosecution allegation is that, the petitioner had committed rape and aggravated penetrative sexual assault on the survivor from the year 2020, when the survivor was 13 years of age, till 29.7.2023. Undoubtedly, the allegations made against the petitioner are serious and grave. The fact remains that the petitioner has been in judicial custody for the last 7 months, the investigation in the case is complete, and the charge sheet has been filed on 11.4.2024. Admittedly, the petitioner does not have any criminal antecedents. There is no likelihood of the trial in S.C. No.883/2024 commencing in the near future.

7. Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has 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 its experience, 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 the 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, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. 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.

8. Similarly, in Jalaluddin Khan v Union of India, [2024 INSC 604] the Honourable Supreme Court has observed in the following lines:

“21. xxxxx 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 the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution. “

9. In Prabir Purkayastha v. State (NCT of Delhi)[2024 SCC OnLine SC 934], the Honourable Supreme Court has observed as follows:-

“21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. v. State of Kerala[(2022) SCC OnLine SC 929]

“7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens.”

10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on comprehending the fact that the petitioner has been in judicial custody for the last 7 months, the investigation in the case is complete, the charge sheet has been filed and there is no likelihood of the trial in S.C. No.883/2024 commencing in the near future, I am of the firm view that the petitioner is entitled to be enlarged on bail. Hence, I am inclined to allow the bail application, but subject to stringent conditions.

11. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in S.C. No. 883/2024.

(ii) The petitioner shall not directly or indirectly make any inducement or threat to the victim or her witnesses or to any person acquainted with the facts of the case, so as to dissuade them from disclosing such facts to the court or to any Police Officer, or tamper with the evidence in any manner, whatsoever;

(iii) The petitioner shall not commit any offence while he is on bail;

(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;

(v) The petitioner shall not enter the police station limits of the survivor till the conclusion of the trial in S.C.No883/2024, other than for the purpose of reporting before the Investigating Officer;

(vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.

(viii) 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].

(ix) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case, which shall be decided by the competent Court.