IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 6TH DAY OF MAY 2022 / 16TH VAISAKHA, 1944
BAIL APPL. NO. 3072 OF 2022
PETITIONER/S:
FARIS
AGED 24 YEARS
SON OF UMMER, KOTTILUNGAL HOUSE,
KOLAKKADU, MOODAL, KUTTIPPURAM,
MALAPPURAM DISTRICT., PIN - 679571
BY ADV NIREESH MATHEW
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
ADV SANAL P.RAJ -P.P
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 06.05.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-2-
BA No. 3072 of 2022
P.V.KUNHIKRISHNAN, J.
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B.A.No.3072 of 2022
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Dated this the 6th day of May, 2022
ORDER
This Bail Application is filed under Section 439 of Criminal Procedure Code.
2. Petitioner is the accused in Crime No.110 of 2022 of Cherpulassery Police Station. The above case is registered against the petitioner alleging offences punishable under Section 376 IPC and the petitioner was arrested on 24.03.2022 and he is in custody.
3.The prosecution case is that on a day in the month of April 2021, on a false promise of marriage, the accused took the de facto complainant to a hotel by name Melbourne Touristt Home, Cherpulassery and committed rape on her without her -3- BA No. 3072 of 2022 consent. Hence, it is alleged that the accused committed the offence.
4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that even if the entire allegations are accepted, the offencce under Section 376 IPC is not made out. The counsel submitted that even according to the de facto complainant, she was married at the time of the alleged incident. In such circumstances, the allegation that the rape was committed promising marriage will not stand. The counsel also submitted that the petitioner is two years younger to the de facto complainant. The counsel also takes me through Annexure 1 judgment of this Court in which it is stated that promise to marry made to married women not legally enforceable, offence of rape not attracted. The counsel submitted that the petitioner is ready to abide any condition if this Court grant him bail. The public prosecutor opposes the -4- BA No. 3072 of 2022 bail application. It is true that the allegation against the petitioner is very serious. But I carefully considered the case of the de facto complainant. I do not want to make any observation about the merits of the case. Considering the facts and circumstances of the case and also considering the period of detention, I think the petitioner can be released on bail on stringent conditions.
5. 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. -5- BA No. 3072 of 2022
6. 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 case so as to dissuade him 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.-6-
BA No. 3072 of 2022
5. Petitioner shall appear before the Investigating Officer on all Mondays at 10 am till the final report is filed.
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 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 das -7- BA No. 3072 of 2022 APPENDIX OF BAIL APPL. 3072/2022 PETITIONER ANNEXURES Annexure1 TRUE PHOTOCOPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN CRL.M.C NO.
4933/2021 DATED 29.03.222.