Kerala High Court
Kailas Nadh vs State Of Kerala on 9 April, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:30777
BAIL APPL. NO. 4491 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 9TH DAY OF APRIL 2025 / 19TH CHAITHRA, 1947
BAIL APPL. NO. 4491 OF 2025
CRIME NO.173/2025 OF Kurathikadu Police Station, Alappuzha
PETITIONER/ACCUSED:
KAILAS NADH
AGED 21 YEARS
S/O SANTHOSH, THENGUMPPALITHARAYIL, ALLA
PROVIDENCE, ENGINEERING COLLEGE, CHENGANOOR,
ALAPPUZHA, KERALA, PIN - 689121
BY ADVS.
P.THOMAS GEEVERGHESE
RUBAN JOE TONIYO
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
SR PP-HRITHWIK C S
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BAIL APPL. NO. 4491 OF 2025
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A. No.4491 of 2025
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Dated this the 09th day of April, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime
No.173/2025 of Kurathikadu Police Station. The above case is
registered against the petitioner alleging offences punishable
under Sections 366, 354B, 506 and 376(2)(n) of the Indian
Penal Code.
3. The prosecution case is that, the accused with
the intention of committing rape on the complainant, seduced
her by promising marriage. It is alleged that in August 2023,
the accused abducted the complainant on his Dio scooter from
a bus stop in Kattaanam Junction and took her to the house of
the accused in Chengannur by 11am, undressed her and raped
her. On another day in the same week, the same event had
occurred in which the accused allegedly abducted the
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complainant in the morning, took her to his house at
Chengannur and raped her. It is further alleged that in August
2024 a similar incident occurred where the accused abducted
the complainant and took her to his friend's house in
Chengannur, undressed her and raped her.
4. Heard the learned counsel for the petitioner
and the learned Public Prosecutor.
5. This Court directed the Public Prosecutor to
hand-over a copy of the First Information Statement. This
Court perused the First Information Statement. Admittedly the
victim in this case is major and the petitioner is aged 21. A
perusal of the First Information Statement would show that the
victim went along with the petitioner to the house of the
petitioner and there was sexual intercourse on three occasions.
According to the victim she gave consent because there was a
promise to marry. But the petitioner withdrew from that
promise. The Apex Court in Mahesh Damu Khare v. The
State of Maharashtra and Another [2024 INSC 897]
considered the same issue. The relevant portion of the above
judgment is extracted hereunder:
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"22. In our view, if a man is accused of having
sexual relationship by making a false promise of
marriage and if he is to be held criminally liable,
any such physical relationship must be traceable
directly to the false promise made and not
qualified by other circumstances or consideration.
A woman may have reasons to have physical
relationship other than the promise of marriage
made by the man, such as personal liking for the
male partner without insisting upon formal
marital ties. Thus, in a situation where physical
relationship is maintained for a prolonged period
knowingly by the woman, it cannot be said with
certainty that the said physical relationship was
purely because of the alleged promise made by
the appellant to marry her. Thus, unless it can be
shown that the physical relationship was purely
because of the promise of marriage, thereby
having a direct nexus with the physical
relationship without being influenced by any other
consideration, it cannot be said that there was
vitiation of consent under misconception of fact."
6. The Apex Court in Manish Yadav v. State of
Utter Pradesh & Another [2025 SCC OnLine SC 363] again
considered the same issue. The relevant portion of the above
judgment is extracted hereunder:
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"18. Applying the above principle to the case at hand,
it is clearly discernible that in the present case, the
complainant had agreed to indulge in intimate
relations with the appellant on the accord of her own
desires and not on the basis of any false promise of
marriage made by the appellant. Therefore, while the
present case may involve a breach of promise, it does
not constitute a case of an inherently false promise to
marry. Based on the circumstances, it cannot be
concluded that the appellant obtained the
complainant's consent to engage in a physical
relationship under the pretext of a false promise of
marriage.
22. In view of the above discussion, we are of the
opinion that the present case appears to be one where
a consensual physical relationship between two adults
has turned sour due to certain intervening events.
Hence, allowing the prosecution of the appellant for
the offences mentioned above would tantamount to
sheer abuse of the process of law and nothing else."
Keeping in mind the above principles laid down by the Apex
Court, this Court perused the prosecution case. I am of the
considered opinion that the petitioner can be released on bail
after imposing stringent conditions. Moreover the petitioner is
in custody from 20.03.2025.
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7. 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.
8. Moreover, in Jalaluddin Khan v. Union of
India [2024 KHC 6431], the Hon'ble Supreme Court
observed that:
"21. Before we part with the Judgment, we
must mention here that the Special Court and
the High Court did not consider the material in
the charge sheet objectively. Perhaps the focus
was more on the activities of PFI, and
therefore, the appellant's case could not be
properly appreciated. When a case is made out
for a grant of bail, the Courts should not have
any hesitation in granting bail. The allegations
of the prosecution may be very serious. But,
the duty of the Courts is to consider the case
for grant of bail in accordance with the law.
"Bail is the rule and jail is an exception" is a
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settled law. Even in a case like the present
case where there are stringent conditions for
the grant of bail in the relevant statutes, the
same rule holds good with only modification
that the bail can be granted if the conditions in
the statute are satisfied. The rule also means
that once a case is made out for the grant of
bail, the Court cannot decline to grant bail. If
the Courts start denying bail in deserving
cases, it will be a violation of the rights
guaranteed under Art.21 of our Constitution."
(underline supplied)
9. In Manish Sisodia v. Directorate of
Enforcement [2024 KHC 6426], also the Hon'ble Supreme
Court observed that:
"53. The Court further observed that, over a
period of time, the trial courts and the High
Courts have forgotten a very well - settled
principle of law that bail is not to be withheld as
a punishment. From our experience, we can say
that it appears that the trial courts and the High
Courts attempt to play safe in matters of grant
of bail. The principle that bail is a rule and
refusal is an exception is, at times, followed in
breach. On account of non - grant of bail even in
straight forward open and shut cases, this Court
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is flooded with huge number of bail petitions
thereby adding to the huge pendency. It is high
time that the trial courts and the High Courts
should recognize the principle that "bail is rule
and jail is exception"."
10. 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
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person acquainted with the facts of the
case so as to dissuade him/her 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.
5. The observations and findings in this order
is only for the purpose of deciding this bail
application. The principle laid down by this
Court in Anzar Azeez v. State of Kerala
[2025 SCC OnLine KER 1260] is applicable
in this case also.
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
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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
jv
