Kerala High Court
Saklain vs State Of Kerala on 23 September, 2020
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942
Bail Appl.No.5615 OF 2020
CRIME NO.2159/2020 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM
PETITIONER/ACCUSED:
SAKLAIN
AGED 22 YEARS
KANJIRAKKATTU HOUSE,
COMPANYPPADY BHAGOM,MUVATTUPUZHA,
ERNAKULAM
686661
BY ADV. SRI.R.BINDU (SASTHAMANGALAM)
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
ERNAKULAM-682031
SRI.AJITH MURALI,PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No. 5615 of 2020 2
O R D E R
This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.
2. The Petitioner is the accused in Crime No.2159/2020 of Muvattupuzha Police Station, Ernakulam District. The above case is registered against the petitioner alleging offence punishable under Section 376 (2) (n) of the Indian Penal Code.
3. The prosecution case is that, the petitioner and the accused studied together for plus one and plus two course at St. Sebastian's School, Anikkad. They fell in love and on 27.01.2018, 15.07.2018 and on 20.08.2018 the petitioner took the victim girl to the house of the petitioner and committed rape, promising that he will marry her. It is also alleged that, subsequently the petitioner went to Gulf and came back on 21.06.2020. Thereafter, on 16.07.2020, the defacto complainant was taken to her house by the petitioner at about 4.45.P.M and the petitioner again committed rape. Now the petitioner withdrew from the promise to marry the victim. B.A.No. 5615 of 2020 3
4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
5. The learned counsel for the petitioner submitted that, the allegations against the petitioner are incorrect. The learned counsel submitted that, even if the entire allegations are accepted, no offence is made out. The learned counsel submitted that, the allegation against the petitioner is that, petitioner committed rape on the victim girl, promising that he will marry her. The case of the victim is that the petitioner withdrew from the marriage. According to the learned counsel, this point is considered by the Appex Court in Dhruvaram Murlidhar Sonar (Dr.) Vs. State of Maharashtra (2019 (1) KHC 403) and Pramod Suryabhan Pawar Vs. State of Maharashtra (2019-KHC-6829). The learned counsel submitted that, the petitioner is ready to abide any conditions, if this court grant him bail.
6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor submitted that, the petitioner cheated the defacto complainant. But the learned Public Prosecutor conceded that, the alleged rape happened in this case, after the victim B.A.No. 5615 of 2020 4 became major.
7. Admittedly, the petitioner is now aged 22 and the victim also aged 22. The allegation against the petitioner is that, the petitioner committed sexual intercourse with the defacto complainant, promising that he will marry her. Subsequently, the petitioner withdrew from the marriage. The learned Public Prosecutor made available the FI statement. On perusal of the FI statement, it is clear that, the victim also conceded that, there was a love affair between the petitioner and the victim. The case of the victim is that she gave consent for sex, based on the promise given by the petitioner. I don't want to make any observations about the merit of the case.
8. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions.
9. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench B.A.No. 5615 of 2020 5 of this Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons.
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 bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.
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:
1. The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation.
2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he/they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with B.A.No. 5615 of 2020 6 two solvent sureties each for the like sum to the satisfaction of the officer concerned.
3. 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.
4. Petitioner shall not leave India without permission of the jurisdictional Court.
5. 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.
6. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic.B.A.No. 5615 of 2020 7
7. 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.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE NB