Kerala High Court
Ashik vs State Of Kerala on 20 January, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 20TH DAY OF JANUARY 2025 / 30TH POUSHA, 1946
BAIL APPL. NO. 11319 OF 2024
CRIME NO.2113/2024 OF Town East Police Station, Thrissur
PETITIONER/ACCUSED:
ASHIK
AGED 26 YEARS
S/O ABDUL KAREEM, PUTHANPEEDIKAYIL HOUSE, ATOOR
GATE DESOM, MULLOORKKARA VILLAGE, CHERUTHURUTHY.
THRISSUR DISTRICT, PIN - 679531
BY ADVS.
SRUTHY N. BHAT
P.M.RAFIQ
M.REVIKRISHNAN
AJEESH K.SASI
RAHUL SUNIL
SRUTHY K.K
NANDITHA S.
SOHAIL AHAMMED HARRIS P.P.
AARON ZACHARIAS BENNY
SRI.VIJAYABHANU, SR
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 POOJA
VISHNU POOJA HOUSE, AROLI P O KAMMADATHMOTTA,
KANNUR IMPLEADED AS R2 VIDE ORDER DATED 7-1-25 IN
CRL MA 1/25
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BAIL APPL. NO.11319 OF 2024
2
BY ADVS.
MEENAKSHY PARVATHY
NANDAGOPAN M.C.
ASWIN THANKAPPAN
NOUSHAD.K.A, SR PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
20.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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BAIL APPL. NO.11319 OF 2024
3
P.V.KUNHIKRISHNAN, J
--------------------------------
B.A.No.11319 of 2024
-------------------------------
Dated this the 20th day of January, 2025
ORDER
This Bail Application is filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita (for short BNSS).
2. Petitioner is the accused in
Crime No.2113/2024 of Town East Police Station, Thrissur,
registered alleging offence punishable under Section 376(i) of
the Indian Penal Code.
3. The prosecution case is that, on the pretext of
promise to marry, the accused committed rape on the defacto
complainant from a hotel.
4. Heard counsel for the petitioner and the
Public Prosecutor.
5. The Senior Counsel Sri.Vijayabhanu,
instructed by Sri.P.M.Rafiq submitted that, the petitioner is in
custody from 21.12.2024. The Senior Counsel submitted that,
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the petitioner is ready to abide by any conditions, if this
Court grants him bail. The Senior Counsel also submitted
that, as per the admitted prosecution case, there is a long
relationship between the petitioner and the defacto
complainant. According to the prosecution, she accompanied
the petitioner to a hotel at Casino and the alleged rape
committed by the petitioner from the hotel. The first incident
happened on 14.06.2024, thereafter, the sexual relationship
continued. The complaint was only filed in December 2024.
The Senior counsel submitted that, even if the entire
allegations are accepted, no offence of rape is attracted
against the petitioner.
6. The counsel appearing for the defacto
complainant seriously opposed the bail application. The
counsel submitted that, the petitioner is involved in yet
another case in which the offence alleged is under Section 64
of the Bharatiya Nyaya Sanhita, 2023 (for short BNS). The
counsel submitted that, the victim was raped after giving
juice mixed with drugs. The counsel submitted that, it is a
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clear case of rape.
7. The Public Prosecutor also opposed the bail
application.
8. This Court considered the contention of the
petitioner, Public Prosecutor and the counsel appearing for
the defacto complainant. It is true that the allegation against
the petitioner is serious. But, the fact remains that, the
petitioner is in custody from 21.12.2024. The admitted
prosecution case is that, there is a promise to marry from the
side of the petitioner and thereafter, there was a sexual
intercourse happened between the petitioner and the victim.
Admittedly, the victim is aged 26 years and the petitioner is
aged 26 years. The Apex Court in MAHESH DAMU KHARE
V. THE STATE OF MAHARASHTRA & ANR [ 2024 LiveLaw
(SC) 921 ], considered the same.
" 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
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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."
9. Keeping in mind the above principle, and also
considering the fact that the petitioner is custody from
21.12.2024, I think the petitioner can be released on bail after
imposing stringent conditions.
10. 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
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bail is the rule and refusal is the exception so as to ensure
that the accused has the opportunity of securing fair trial.
11. 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 settled law.
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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)
12. 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
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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 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".
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
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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 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. If any of the above conditions are violated
by the petitioner, the jurisdictional Court can
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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
SSG
