X vs State Of Kerala
2021 Latest Caselaw 5362 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

     MONDAY, THE 15TH DAY OF FEBRUARY 2021 / 26TH MAGHA,1942

                       Bail Appl..No.1608 OF 2021

     CRIME NO.519/2020 OF NILAMBUR POLICE STATION, MALAPPURAM


PETITIONER:

               X
               AGED 32 YEARS
               X
               643233

               BY ADV. SRI.P.SAMSUDIN

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA
               682031

      2        VICITM
               AGED 25 YEARS
               VICITM ANONIMITY
               679329

               R1 BY PUBLIC PROSECUTOR
               R2 BY ADV. SRI.M.ANUROOP

OTHER PRESENT:

               SRI.AJITH MURALI, PP

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION         ON
15.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Bail Appl..No.1608 OF 2021

                                 2




                             ORDER

Dated this the 15th day of February, 2021

This Bail Application filed under Section 438 of

Criminal Procedure Code was heard through Video

Conference.

2. The petitioner is the accused in crime No. 519 of

2020 of Nilambur Police Station, Malappuram District. The

above case is registered against the petitioner alleging

offences punishable under Sections 450, 376 (2)(n) and

506 of the Indian Penal Code (IPC).

3. The prosecution case is that, the accused and

the de facto complainant are close relatives. It is alleged

that, the accused subjected de facto complainant to sexual

intercourse against her will from 2017 June onwards till

2018 November, at her residence and at Reem Residency,

Makkaraparambu. It is further alleged that, the petitioner

threatened her with dire consequence, if the same is

revealed to others.

Bail Appl..No.1608 OF 2021

4. Heard the learned counsel for the petitioner and

the learned Public Prosecutor.

5. The learned counsel for the petitioner submitted

that, even if the entire allegations are accepted, the

offence under Section 376 of IPC is not made out. The

learned counsel submitted that, the victim in this case filed

an affidavit before this Court, in which it is stated that, she

has no grievance against the petitioner. The learned

counsel for the petitioner also submitted that, the

petitioner is ready to abide any conditions, if this Court

grants him bail.

6. The learned Public Prosecutor opposed the bail

application. But, the learned Public Prosecutor conceded

that, the investigation is in the final stage.

7. It is true that the allegation against the

petitioner is very serious. This Court can not accept the

affidavit of victim, while considering the bail application in

which she stated that, she has no grievance against the

petitioner. But since the investigation is almost over. I Bail Appl..No.1608 OF 2021

think this bail application can be allowed on stringent

conditions. Admittedly, the alleged incident happened in

the year 2017-2018 and the complaint is filed only in

November 2020. I do not want to make any observations

about the merit of the case. Considering the entire facts

and circumstance of the case, I think this bail application

can be allowed on stringent conditions.

8. Moreover, considering the need to follow social

distancing norms inside prisons so as to avert the spread

of the novel Corona Virus Pandemic, the Hon'ble Supreme

Court in Re: Contagion of COVID-19 Virus In Prisons

case (Suo Motu Writ Petition(C) No.1 of 2020) and a

Full Bench of this Court in W.P(C)No.9400 of 2020

issued various salutary directions for minimizing the

number of inmates inside prisons.

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), Bail Appl..No.1608 OF 2021

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.

10. 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. The petitioner shall appear before the

Investigating Officer within ten days from today

and shall undergo interrogation;

2. After interrogation, if the Investigating

Officer proposes to arrest the petitioner, he shall

be released on bail executing a bond for a sum of

Rs.50,000/-(Rupees Fifty Thousand only) with two

solvent sureties each for the like sum to the

satisfaction of the officer concerned;

3. The petitioner shall appear before the Bail Appl..No.1608 OF 2021

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;

4. The petitioner shall not leave India

without permission of the Court;

5. The 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. The petitioner shall strictly abide by the

various guidelines issued by the State Government

and Central Government with respect to keeping of

social distancing in the wake of Covid 19 pandemic.

Bail Appl..No.1608 OF 2021

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.

(Sd/-) P.V.KUNHIKRISHNAN, JUDGE LU