Kerala High Court

Hashik Rahman vs State Of Kerala on 6 May, 2022

                     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. 3251 OF 2022
AGAINST THE ORDER/JUDGMENT IN CRMP 779/2022 OF JUDICIAL MAGISTRATE OF
                              FIRST CLASS ,NILAMBUR
PETITIONERS:

       1          HASHIK RAHMAN
                  AGED 38 YEARS
                  S/O.ABDUL RAHIMAN, MANGALASSERY HOUSE,
                  CHAKKALAKUTH, NILAMBUR P.O.,
                  MALAPPURAM DISTRICT
                  PIN - 679329

                  BY ADVS.BABU.S.NAIR



RESPONDENTS:

       1          STATE OF KERALA
                  REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
                  PIN - 682031
       2          THE STATION HOUSE OFFICER
                  NILAMBUR POLICE STATION,
                  MALAPPURAM DISTRICT
                  , PIN 679329
       3          XXXXXX
                  XXXXX (SOUGHT TO BE IMPLEADED AS ADDITIONAL 3RD
                  RESPONDENT)
                  BY ADV PUBLIC PROSECUTOR

                  K.M SATHYANATHA MENON



                  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:
 B.A.No.3251 of 2022
                                       2



                            P.V.KUNHIKRISHNAN, J
                         --------------------------------
                              B.A.No.3251 of 2022
                          -------------------------------
                      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.169/2022 of

Nilambur Police Station. The above case is registered against the

petitioner alleging offences punishable under Sections 366, 354A,

354D, 376(2), 384 & 506 of IPC.

3. The prosecution case is that the petitioner's father

and the petitioner are instructors in a Martial Arts called

'Thaikondo', a Korean form of Martial Arts. The petitioner's father

owned an institute at Nilambur in the name as 'Faz way of life'.

According to the defacto complainant, she and her children

started going to the said institute for physical fitness training

from the year 2018. The petitioner is also running another B.A.No.3251 of 2022

institute of similar nature in Dubai and he comes to the institute

for training during the time when he come from abroad. According

to the defacto complainant, there are several people including

women coming to the institute for physical fitness training and the

defacto complainant got acquainted with the petitioner. It is alleged

that they became friends and started to make telephone calls and

messages including chatting. It is the case of the prosecution that

even when the petitioner was abroad, there was frequent calls and

messages. It is also alleged that when the covid pandemic started

in the year 2020, the petitioner borrowed an amount of Rs.3 lakh

from the defacto complainant and the same has not been returned.

Subsequently in the month of March 2021, when the petitioner

came to the native place, again the defacto complainant had given

gold ornaments weighing 4 sovereigns for pledging. It is the case of

the prosecution that in the month of September 2021, it is alleged

that when the defacto complainant had taken her younger son for

badminton coaching, the petitioner came and took her forcibly into

a car and by kissing and hugging inside the car, the modesty of the B.A.No.3251 of 2022

defacto complainant was outraged. It is further alleged that money

and gold ornaments given by the defacto complainant to the

petitioner was without the knowledge of her husband. It is further

alleged that in the month of October 2021, when the defacto

complainant went to pick her son from the institute, the petitioner

again took the defacto complainant forcibly and had attempted to

commit rape on her. It is further alleged that the said act was being

shot in the mobile phone. Thereafter, the diamond ring of the

defacto complainant was demanded threatening that the petitioner

is having photos which shows intimate relationship between the

petitioner and the defacto complainant and the same will be

published. It is further alleged that the photo of the defacto

complainant was posted by the petitioner in the whatsapp and in

instagram. Hence the complaint was filed. The petitioner was

arrested in connection with the above case on 14.04.2022.

4. Heard counsel for the petitioner and the Public

Prosecutor. The counsel for the petitioner submitted that even if

the entire allegations are accepted, no offence is made out. The B.A.No.3251 of 2022

Counsel submitted that a bare perusal of the FI statement given by

the defacto complainant would show that the alleged act if any

happened was with full consent of the defacto complainant. The

Counsel submitted that the petitioner and the defacto complainant

are married people and they have children. The Counsel submitted

that the petitioner is ready to abide any condition, if this Court

grant him bail. The Public Prosecutor seriously opposed the grant of

bail. This Court perused the FI Statement given by the defacto

complainant. I do not want to make any observations about the

merit of this case. It is a fact that the petitioner is in custody from

14.04.2022 onwards. The petitioner and the defacto complainant

are married people and they are having children. Considering the

entire facts and circumstances of the case, 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, B.A.No.3251 of 2022

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.

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 B.A.No.3251 of 2022

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 they are accused, or