Tiju George Thomas vs State Of Kerala
2021 Latest Caselaw 12282 Ker

Citation : 2021 Latest Caselaw 12282 Ker
Judgement Date : 7 May, 2021

Kerala High Court

Tiju George Thomas vs State Of Kerala on 7 May, 2021

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

      THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 FRIDAY, THE 07TH DAY OF MAY 2021 / 17TH VAISAKHA, 1943

                 Bail Appl..No.3477 OF 2021

CRIME NO.164/2021 OF Panangad Police Station , Ernakulam


PETITIONER/S:

           TIJU GEORGE THOMAS
           AGED 33 YEARS
           S-O. GEORGE THOMAS, CHERUTHOTTATHIL MALAYIL,
           KOZHENCHERY EAST, KOZHENCHERY VILLAGE,
           PATHANAMTHITTA DISTRICT
           689641

           BY ADV. SRI.V.S.MANSOOR

RESPONDENT/S:

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

           R1 BY PUBLIC PROSECUTOR

OTHER PRESENT:

           SR.P.P.SRI.C.N.PRABHAKARAN

     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 07.05.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 B.A.No.3477/2021

                                  ..2..




                P.V.KUNHIKRISHNAN, J
                  --------------------------------
                   B.A.No..3477of 2021
                   -------------------------------
            Dated this the 7th day of May, 2021


                           ORDER

This Bail Application filed under Section 439 of Criminal

Procedure Code was heard through Video Conference.

2. The petitioner is the accused in crime No.164/2021

of the Panangad Police Station. The above case is registered

against the petitioner alleging offences punishable under

Section 376(2)(n), 406 and 420 of the Indian Penal Code.

3. The prosecution case in brief is as follows:- The

defacto complainant is a divorced woman. She registered in

matrimonial websites for marriage. According to her, she

came to contact with the petitioner who alleged to have

represented to her that he was working as a Pilot in Indigo

Airlines and he is also a divorcee. The petitioner and his

friends visited the house of the defacto complainant.

Thereafter the petitioner and his friends invited the defacto B.A.No.3477/2021

..3..

complainant to Ramada resort, Kumbalam for birthday party.

During the party, the defacto complainant also consumed

liquor under the compulsion of the petitioner. Thereafter, the

petitioner had physical relationship with the defacto

complainant without her consent, who was in an intoxicated

stage. She was also forced to do oral sex in the car of the

petitioner. Hence, it is alleged that the accused committed

the offence.

4. Heard the learned counsel for the petitioner and

the learned Public Prosecutor. The learned counsel for the

petitioner submitted that the petitioner is in custody from

13.04.2021 onwards. The alleged occurrence was on

29.01.2021 and the complaint was filed only on 01.04.2021.

The counsel submitted that there was some money transaction

between the petitioner and the defacto complainant and when

the petitioner refused to pay further amount to the defacto

complainant, she filed a false complaint. The Public

Prosecutor opposed the bail application. The Public

Prosecutor submitted that the petitioner committed serious

offence.

B.A.No.3477/2021

..4..

5. The petitioner is in custody from 13.04.2021. It is

an admitted fact that the victim in this case is a major girl.

She voluntarily accepted the invitation of the petitioner and

went to Ramada resort, Kumbalam to participate in the

birthday ceremony. It is also admitted by the victim that she

consumed alcohol, of course, according to her, because of the

compulsion from the petitioner. Thereafter, the alleged sexual

assault was committed by the petitioner. I do not want to

make any observation about the merit of the case. The

petitioner is in custody from 13.04.2021 onwards.

Considering the entire facts and circumstances of the case, I

think this Bail Application can be allowed on stringent

conditions.

6. Moreover, the 2nd wave of COVID-19 is spreading in

the country and the citizens are facing serious difficulties. In

the state of Kerala, the 2nd wave of the pandemic is creating

lot of problems and even the day-to-day life of the citizens are

affected. Everyday, about 25,000 people are tested positive

with COVID-19. In such circumstances, this Court has to

consider this fact also while considering bail applications. The B.A.No.3477/2021

..5..

life is more important than anything. Therefore, I am

considering this bail application based on the above pandemic

situation.

7. 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. These happened during the 1 st wave of COVID-19

season.

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. B.A.No.3477/2021

..6..

9. 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 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. The Petitioner shall not leave B.A.No.3477/2021

..7..

India without permission of the

jurisdictional Court.

4. The Petitioner shall not commit

any offence similar to the offence alleged in

this case.

5. 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.