Kerala High Court
Faris 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. 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
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
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.
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.
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
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.
