Nithin Shankar. G.S vs State Of Kerala
2024 Latest Caselaw 29791 Ker

Kerala High Court

Nithin Shankar. G.S vs State Of Kerala on 22 October, 2024

Author: C.S.Dias

Bench: C.S.Dias

                                               2024:KER:78590

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
              THE HONOURABLE MR.JUSTICE C.S.DIAS
 TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
                 BAIL APPL. NO. 7469 OF 2024
      CRIME NO.508/2024 OF POZHIYOOR POLICE STATION,
                      THIRUVANANTHAPURAM
     AGAINST THE ORDER/JUDGMENT DATED 27.08.2024 IN CRMC
NO.2178 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS
COURT - IV, THIRUVANANTHAPURAM / I ADDITIONAL MACT

PETITIONER:

         NITHIN SHANKAR. G.S.
         AGED 28 YEARS
         S/O. GANESH KUMAR, T.C.23/1188, REMASAILAM,
         MELARANOOR, KARAMANA, THIRUVANANTHAPURAM
         DISTRICT., PIN - 695002


         BY ADV SHAJIN S.HAMEED


RESPONDENT:

         STATE OF KERALA
         REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT
         OF KERALA, ERNAKULAM., PIN - 682031

          SR.PP SRI. C.S.HRITHWIK


     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                              2024:KER:78590
BAIL APPL. NO. 7469 OF 2024

                                  2



                       ORDER

Dated this the 22nd day of October,2024

The application is filed under Section 482 of the

Bharatiya Nagarik Suraksha Sanhita, 2023, for an

order of pre-arrest bail.

2. The petitioner is the sole accused in Crime

No.508/2024 of the Pozhiyoor Police Station,

Thiruvananthapuram, which is registered against him

for allegedly committing the offences punishable under

Sections 354(A) & 376 of the Indian Penal Code, 1860.

3. The essence of the prosecution case is that:

on 29.01.2022, at around 4:00 hours, while the accused

and the survivor were staying together in a resort in

Thiruvananthapuram, the accused laid on the side of

the survivor, groped her breasts and inserted his

fingers into her genitals. Thus, the accused has

committed the above offences.

4. Heard; Sri.Shajin S. Hameed, learned 2024:KER:78590 BAIL APPL. NO. 7469 OF 2024

counsel appearing for the petitioner and

Sri.C.S.Hrithwik, the learned Senior Public Prosecutor

5. The learned counsel for the petitioner

submitted that the petitioner is totally innocent of the

accusations leveled against him. There is no material

to substantiate the petitioner's involvement in the

crime. The very fact that the alleged incident took

place on 29.01.2022, but the FIR has been registered

only on 15.8.2024, proves the falsity and frivolity in the

crime. The survivor has deliberately got the above

case registered solely for the purpose of harassing and

vexing the petitioner. The petitioner and the survivor

have been maintaining a consensual relationship from

the year 2020. They parted ways in 2022. The

petitioner is a law-abiding citizen without any criminal

antecedents. The petitioner's custodial interrogation is

not necessary. The petitioner is ready to co-operate

with the Investigating Officer. Hence, the application

may be allowed.

2024:KER:78590 BAIL APPL. NO. 7469 OF 2024

6. The learned Public Prosecutor opposed the

application. He submitted that the investigation is in

progress. He also stated that if the petitioner is

granted an order of pre-arrest bail, there is every

likelihood of him intimidating the witnesses and

tampering with evidence. Hence, the application may

be dismissed.

7. The prosecution allegation is that, the

petitioner had committed rape and outraged the

modesty of the survivor on 29.01.2022, by groping her

breasts and inserting his fingers into her genitals.

Indisputably, the incident occurred on 29.01.2022, but

the FIR has been registered only on 15.8.2024. There

is no plausible explanation for the inordinate delay in

registering the FIR. However, that is a matter to be

investigated and ultimately decided after trial.

8. In Vishnu vs. State of Kerala [2023 (4)

KHC 1], this Court, after scrutinising all the earlier

decisions on the point, has made a clear distinction 2024:KER:78590 BAIL APPL. NO. 7469 OF 2024

between rape and consensual sex. It is held that unless

there is an allegation or proof that the accused has

given a false promise to marry the victim, the offence

of rape cannot be attributed. The said legal principle

has been reiterated by this Court in X. vs. State of

Kerala [2022 KHC 296].

9. In Bhadres Bipinbhai Sheth vs State

of Gujarat and another [2015 KHC 4579], the

Hon'ble Supreme Court has succinctly culled out the

principles to grant an order of pre-arrest bail. It is

observed that the courts should carefully examine the

complaint made against the accused when considering

a bail application, especially to find out if it is a false or

frivolous complaint. The gravity of each charge and the

exact role of the accused should also be properly

comprehended. The discretion to grant an order of

pre-arrest bail must be exercised based on the

available materials and the facts of the particular case,

and there is no requirement that the accused must 2024:KER:78590 BAIL APPL. NO. 7469 OF 2024

make out a special case to exercise the power to grant

anticipatory bail. The discretion of the Court should be

exercised with due care and circumspection. Similarly,

the frivolity in the prosecution has to be examined,

particularly whether the accused would be

unjustifiably harassed, humiliated, or detained.

10. On an anxious consideration of the facts,

the rival submissions made across the Bar, and the

materials placed on record, especially on considering

the fact that the petitioner and the survivor were

maintaining a cordial relationship, and the alleged

incident took place on 29.01.2022, but the FIR has

been registered only on 15.8.2024, and there is no

plausible explanation for the inordinate delay in

registering the FIR, I am satisfied that the petitioner

has made out valid grounds to invoke the discretionary

jurisdiction of this Court under Section 482 of the

BNSS. Hence, I am inclined to allow the application,

but subject to stringent conditions.

2024:KER:78590 BAIL APPL. NO. 7469 OF 2024

In the result, the application is allowed subject

to the following conditions:

(i) The petitioner is directed to surrender before the Investigating Officer within one week from today.

(ii) In the event of the petitioner's arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/-

(Rupees fifty thousand only) with two solvent sureties for the like amount each;

(iii) The petitioner shall appear before the Investigating Officer between 9 a.m. and 2 p.m. for three days from the date of his release. The Investigating Officer would be at liberty to interrogate the petitioner during the said period and also subject him to medical examination, if felt necessary. The petitioner shall also appear before the Investigating Officer as and when directed.

(iv) The petitioner shall not directly or indirectly make any inducement, threat or procure to the survivor or her witnesses or any person 2024:KER:78590 BAIL APPL. NO. 7469 OF 2024

acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;

(v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before the said court within the said period;

(vi) The petitioner shall not get involved in any other offence while on bail;

(vii)In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.

(viii) Applications for deletion/modification of the ball conditions shall also be filed before the jurisdictional court;

(ix) Needless to mention, it would be well within the powers of the Investigating Officer to 2024:KER:78590 BAIL APPL. NO. 7469 OF 2024

investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663).

(x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case, which shall be decided by the competent Courts.

SD/-

C.S.DIAS,JUDGE rmm/22/10/2024