Kerala High Court

Asik @ Sudheer vs State Of Kerala on 18 February, 2025

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

B. A. No. 2053 of 2025              1            2025:KER:13541



         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946

                    BAIL APPL. NO. 2053 OF 2025

   CRIME NO.65/2025 OF KATTOOR POLICE STATION, THRISSUR

AGAINST THE ORDER/JUDGMENT DATED 06.02.2025 IN CRMC NO.148

  OF 2025 OF ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR.

PETITIONER:

         ASIK @ SUDHEER
         AGED 39 YEARS
         S/O. SIDDIQUE, POKKAKKILLATH HOUSE, THOPPITHARA
         DESOM, KATTOOR VILLAGE, THRISSUR DISTRICT., PIN -
         680702.

         BY ADVS.
         SHAJIN S.HAMEED
         BIJU VARGHESE ABRAHAM


RESPONDENT:

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



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
18.02.2025,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 B. A. No. 2053 of 2025          2          2025:KER:13541




                P.V.KUNHIKRISHNAN, J
                   --------------------------------
                  B. A. No. 2053 of 2025
                   -------------------------------
         Dated this the 18th day of February, 2025

                         ORDER

This Bail Application is filed under Section 483 of

Bharatiya Nagarik Suraksha Sanhita.

2. Petitioner is the accused in Crime No.65 of

2025 of Kattoor Police Station registered alleging offences

punishable under Sections 354, 376(2)(n), 506, 509, 450

and 420 of Indian Penal Code.

3. The prosecution case is that, the accused

developed an intimacy with the victim and they used to

contact over phone by calls and messages. Admittedly, the

victim is a married woman. The accused promised to marry

the victim. It is alleged that on 09.12.2023, the accused

trespassed into the compound of the house of the victim,

knocked on the window of her bedroom and when she

opened the window, the accused caught on her breast and

sexually abused her. It is also alleged that the accused had B. A. No. 2053 of 2025 3 2025:KER:13541

oral sex with the victim. Further, the accused took nude

photos and videos from the victim and by using the same he

threatened her and had sexual intercourse with her on

26.01.2024, 08.02.2024, 19.02.2024 and 08.03.2024.

Finally, it is also alleged that the accused altogether

borrowed an amount of Rs.1 lakh from her and thereby

committed the offences. Petitioner was arrested on

12.01.2025 and he is in custody.

4. Heard counsel for the petitioner and the

Public Prosecutor.

5. The learned counsel for the petitioner

submits that even if the entire allegations are accepted, the

offence of rape is not attracted. The Counsel submitted that

admittedly the victim is a married woman and the case of

the victim that there was a promise to marry and based on

that the sexual intercourse was permitted cannot be

believed. According to the petitioner, this was a consensual

sexual intercourse.

B. A. No. 2053 of 2025 4 2025:KER:13541

6. The learned Public Prosecutor oppose the

bail application.

7. This Court perused the prosecution case as

per Annexure-A, remand report. A perusal of the same

would show the victim is a married woman and she

developed an intimacy with the petitioner. There was

continuous sexual relationship between the victim and the

petitioner on several occasions at several places. According

to the victim, she consented for sexual intercourse because

there was a promise to marry. But admittedly, the victim is

a married woman. I would not want to make any further

opinion about the verdict of the case. The Apex Court in

Mahesh Damu Khare v. The State of Maharashtra &

ANR 2024 INSC 897, keeping in mind the above principle,

this court considered the prosecution case and of the

considered opinion that the petitioner can be released on

bail after imposing stringent conditions. Moreover the

petitioner is in custody from 12.01.2025. B. A. No. 2053 of 2025 5 2025:KER:13541

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. 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 B. A. No. 2053 of 2025 6 2025:KER:13541

bail in accordance with the law. "Bail is the rule and jail is an exception" is a 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)

10. 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 is flooded B. A. No. 2053 of 2025 7 2025:KER:13541

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"."

11. 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: