Kerala High Court
Mahesh 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.3472 OF 2021
CRIME NO.428/2021 OF Pallickal Police Station ,
Thiruvananthapuram
PETITIONER/S:
MAHESH
AGED 20 YEARS
CHARUVILA PUTHEN VEEDU,
THOLIKKODU, VELAMANOOR,
KALLUVATHUKKAL, 691578
691578
BY ADVS.
SRI.M.R.SASITH
SMT.R.K.CHIRUTHA
SMT.NEELANJANA NAIR
SMT.RAJITHA V.K
SMT.APARNA NARAYAN MENON
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT
OF KERALA
682031
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
P.P.SMT.M.K.PUSHPALATHA
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 07.05.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
B.A.No.3472/2021
..2..
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.3472 of 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.428/2021
of Pallikkal Police Station. The above case is registered
against the petitioner alleging offences punishable under
Section 366, 376, 376(2)n of the Indian Penal Code and under
Section 8, 7, 6, 5(l), 4 and 3(a) of the POCSO Act.
3. The prosecution case is that the petitioner
committed sexual assault on the defacto complainant
promising that he will marry her. It is alleged that the
petitioner took the victim in a scooter to Varkkala beach and
to other places. The allegation is that the petitioner
committed rape on the victim on 08.11.2020, 10.11.2020,
11.11.2020 and 12.11.2020. The petitioner is aged 20 years.
B.A.No.3472/2021
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4. Heard the learned counsel for the petitioner and
the learned Public Prosecutor. The learned counsel for the
petitioner submitted that even if the entire allegations are
accepted, the offence under Section 376 IPC is not made out
in the light of the decisions of the Apex Court in Dhruvaram
Muralidhar Sonar v. State of Maharashtra and others
[2019(1) KHC 403] and Pramod Suryabhan Pawar v.
State of Maharashtra [2019 KHC 6829]. The learned
counsel for the petitioner submitted that the petitioner is in
custody from 09.04.2021 onwards. The Public Prosecutor
submitted that the petitioner committed serious offence and
the victim is a minor girl.
5. The decision relied on by the petitioner may not be
applicable to the facts and circumstances of this case because
the victim is a minor. But, it is to be noted that the petitioner
is also only aged 20 years. The allegation is that there is
promise to marry and thereafter the petitioner committed
sexual offence. I do not want to make any observation about
the merit of the case. The petitioner is in custody from
B.A.No.3472/2021
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09.04.2021 onwards. Considering the age of the petitioner
and also considering the fact that the petitioner is in custody
from 09.04.2021, 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
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
B.A.No.3472/2021
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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.
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
B.A.No.3472/2021
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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
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
B.A.No.3472/2021
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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.
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.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
kkj
