2025:KER:27752 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN TUESDAY, THE 1ST DAY OF APRIL 2025 / 11TH CHAITHRA, 1947 BAIL APPL. NO. 4294 OF 2025 CRIME NO.495/2025 OF GANDHINAGAR POLICE STATION, KOTTAYAM PETITIONER/ACCUSED: BABU THOMAS AGED 41 YEARS, S/O. THOMAS CHACKO, EATTIKKAL HOUSE, CHENGAROOR P.O., MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT, KERALA, PIN – 689 594. BY ADVS. NINU M.DAS S.A.ANAND RESPONDENT/STATE & DEFACTO COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. 2 PRAVEENAMOL G D/O M.K.GOPALAN, AMBIKA VILASAM, KAIPUZHA P.O, KAIPUZHA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN – 686 602. BY ADV G.SUDHEER PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:27752 B.A No.4294 of 2025 2 P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.4294 of 2025 ------------------------------- Dated this the 1st day of April, 2025 O R D E R This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is an accused in Crime No.495/2025 of Gandhinagar Police Station, Kottayam. The above case is registered against the petitioner alleging offences punishable under Sections 115(2) and 64(1) of the Bharatiya Nyaya Sanhita (for short, BNS). 3. The prosecution case is that, the informant, a lady aged 42 years was engaged as a home nurse taking care of an aged lady, named Valsamma Joseph, at a place Arattukadavu near Kasthoorba Junction in Arpookkara. As per the working arrangement, the informant had to take care of the 2025:KER:27752 B.A No.4294 of 2025 3 said lady from 16.12.2024 at 05.00 p.m., till the morning of 17.12.2024, when a new home nurse would come. The accused is the son-in-law of the said Valsamma Joseph. On 16.12.2024 in the night, while the informant was sleeping in the sofa of the hall room in the house, the accused grabbed her and forcibly took her to the adjoining room and laid her in the cot. Then he assaulted her by hitting on her both cheeks and head and raped her. On 17.12.2024, the informant sought medical aid and thereafter on 18.12.2024, she was unable to lodge the F.I.R. because of the illness of her mother. The F.I.R. was registered on 19.12.2024. 4. Heard counsel for the petitioner and the Public Prosecutor. 5. Counsel appearing for the petitioner submitted that the petitioner is in custody from 10.03.2025. The 2025:KER:27752 B.A No.4294 of 2025 4 counsel submitted that the petitioner is ready to abide any conditions, if this Court grants him bail. The counsel also submitted that now the dispute between the petitioner and the defacto complainant is already settled and Annexure-A is the affidavit filed by the victim. 6. The Public Prosecutor opposed the bail application. 7. This Court considered the contention of the petitioner and the Public Prosecutor. The petitioner is in custody from 10.03.2025. It is true that the allegation against the petitioner is serious. Counsel for the petitioner submitted that the matter is settled and the victim filed an affidavit before this Court stating that she has no objection. That itself is not enough to grant bail to the petitioner, because, the allegation against the petitioner is serious and it is alleged that he committed rape. But, considering the period of detention, I think the petitioner can be released on bail after imposing 2025:KER:27752 B.A No.4294 of 2025 5 stringent conditions. 8. 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. 9. 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 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 2025:KER:27752 B.A No.4294 of 2025 6 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 Art.21 of our Constitution.” (underline supplied) 10. 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 2025:KER:27752 B.A No.4294 of 2025 7 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 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 2025:KER:27752 B.A No.4294 of 2025 8 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 case so as to dissuade him/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. 2025:KER:27752 B.A No.4294 of 2025 9 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 the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this 2025:KER:27752 B.A No.4294 of 2025 10 Court. The prosecution 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 AMR