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2022 Supreme(Online)(KER) 57484
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
RAVI – Appellant
Versus
STATE OF KERALA – Respondent
Bail Appl./4911/2022
NIDHI BALACHANDRAN, PUBLIC PROSECUTOR
The court emphasized that parties must utilize appellate mechanisms to address sentencing errors rather than seeking bail directly.
Headnote:
Bail - POCSO Act - Section 6, IPC Section 376 - The court discussed the inadequacy of the sentencing under the POCSO Act and asserted that remedies must be sought through the appellate process rather than fresh bail applications.
Fact of the Case:
The petitioner, convicted under the POCSO Act and IPC for aggravated sexual assault and rape, seeks bail based on a Supreme Court order which allows bail after serving half of the sentence.
Finding of the Court:
The court found that the sentencing imposed by the Sessions Judge, being below the minimum statutory requirement, was erroneous, and thus the proper procedure for the petitioner is to appeal rather than file another bail application.
Issues: Whether the petitioner is entitled to seek bail after half of the imposed sentence and whether the sentence itself was appropriate under the statutory framework.
Ratio Decidendi: The court held that remedies for challenging a conviction or sentence need to follow appellate routes, and that the judgment’s inadequacy does not directly furnish grounds for bail.
Final Decision: The bail application is dismissed, directing the petitioner to pursue an appeal.
ORDER
This bail application is filed through the Kerala Legal Service Authority claiming the benefit of Supreme Court’s Order produced as Annexure 2.
2. Sri.Nidhi Balachandran, learned Counsel appearing for the petitioner submits that as per the Supreme Court’s order, persons, who have undergone half the period of imprisonment, are liable to be released on bail and therefore, the petitioner is entitled to have the benefit of the said order.
3. By judgment dated 05.05.2019 in SC No.237/2017 on the files of the Special Court – for POCSO cases, Thodupuzha, petitioner was found guilty for having committted aggravated penetrative sexual assault punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act for short) and for rape punishable under Section 376 of the Indian Penal Code, 1860 . However, when it came to the sentencing part, the learned Sessions Judge imposed only a rigorous imprisonment of 8 years and a fine of Rs.Rs.10,000/- under of the POCSO Act.
4. Section 6 of the POCSO Act provides for a minimum imprisonment of 10 years. The date of occurence in this case is 23.12.2013, and hence the amendment enhancing the mandatory punishment under , from 10 years to 20 years, will not apply and can extend upto imprisonment for life. Despite the mandatory imprisonement of 20 years, curiously, the learned Sessions Judge has imposed only 8 years imprisonment.
Be that as it may, since the petitioner seeks the benefit of the order of the Supreme Court, necessarily, the remedy is not by way of a fresh bail application, but has to move the appellate court, if an appeal is pending. Since the learned Counsel for the petitioner submitted that an appeal has already been filed, but has not yet been numbered, reserving the liberty of the petitioner to move the appropriate application in the pending unnumbered appeal, this bail application is dismissed.
sd/
BECHU KURIAN THOMAS JUDGE jm/
APPENDIX OF BAIL APPL. 4911/2022 PETITIONER ANNEXURES Annexure1 A TRUE COPY OF THE JUDGMENT DATED 5/5/18 IN SC
237/17 ON THE FILE OF SPECIAL COURT UNDER POCSO ACT, THODUPUZHA Annexure2 A TRUE COPY OF THE ORDER DATED 9/2/22 IN SLP (CRL) NO 529/21 OF THE HON'BLE SUPREME COURT
