Kerala High Court
Naseera vs State Of Kerala on 17 August, 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
MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942
Bail Appl..No.4850 OF 2020
AGAINST THE ORDER/JUDGMENT IN CRMC 819/2020 DATED 16-07-2020 OF
ADDITIONAL DISTRICT COURT, MANJERI
CRIME NO.173/2018 OF KOLATHUR POLICE STATION, MALAPPURAM
PETITIONER/ACCUSED:
NASEERA
AGED 46 YEARS
D/O YOOSAF HAJI,
PERAYIL HOUSE,
KAYAKUND,
ANGADIPPURAM,
PERINTHALMANNA,
MALAPPURAM DISTRICT. 679 321
BY ADV. SRI.R.RANJITH (MANJERI)
RESPONDENTS:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
ERNAKULAM - 682031
R1 BY SRI.RENJITH.T.R., PUBLIC PROSECUTOR,
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
17.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No. 4850 of 2020
2
P.V.KUNHIKRISHNAN, J.
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B.A.No. 4850 of 2020
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Dated this the 17th day of August, 2020
ORDER
This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.
2. The petitioner is the 2nd accused in crime No. 173 of 2018 of Kolathur Police Station, Malappuram District. The above case is registered against the petitioner alleging offences punishable under Sections 366, 376(1) IPC and Section 4 read with Section 3A, 17 r/w 16(3) of the Protection of Children from Sexual Offences Act, 2012
3. The prosecution case is that, the 1st accused kidnapped a minor girl in the year 2016, when she was studying in the 10th standard and taken her to the quarters B.A.No. 4850 of 2020 3 of the 2nd accused and the 1st accused committed rape on her. The petitioner is a lady. The allegation against the 2 nd accused is that she provided her quarters to the 1 st accused by receiving an amount of Rs.2,000/-. Hence, it alleged that the petitioner also committed offence.
4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor.
5. The learned counsel for the petitioner submitted that, even if, the entire allegations are accepted. No offence is made out against the petitioner. The learned counsel submitted that, there is no involvement to the petitioner in this case. The allegations are against the 1 st accused. The learned counsel for the petitioner also submitted that, she is ready to abide any conditions, if this Court grants her bail.
6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor submitted that, the 1st accused left India. A notice under Section 41A Cr.P.C. was issued to the petitioner. The petitioner did not appear B.A.No. 4850 of 2020 4 before the Investigating Officer. The learned Public Prosecutor submitted that, the presence of the petitioner is necessary to complete the investigation.
7. Admittedly, the crime in this case is registered in 2018. The alleged incident happened in 2016. The allegation against this petitioner is that, she facilitated the 1st accused to commit rape on the minor. It is alleged that the petitioner receives an amount of Rs.2000/- and provided her quarters to the 1st accused. It is true that the 1st accused left India, but the petitioner was available in India. Even now, the petitioner was not arrested till a notice under Section 41A Cr.P.C. is issued to the petitioner. That also issued in 2020. Considering the entire facts and circumstance in this case, and considering the fact that, there is no serious allegation against this petitioner, I think this bail application can be allowed. I make it clear that, I considered the case of this petitioner alone and the case of the 1st accused, who is absconding is not at all considered by me while considering this bail application. Considering B.A.No. 4850 of 2020 5 the entire facts and circumstances of this case, this bail application can be allowed on stringent conditions.
8. 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 of this Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside prisons.
9. 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.
B.A.No. 4850 of 20206
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. The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation;
2. After interrogation, if the Investigating Officer proposes to arrest the petitioner, she shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with 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 B.A.No. 4850 of 2020 7 to dissuade him from disclosing such facts to the Court or to any police officer;
4. The petitioner shall not leave India without permission of the Court;
5. The petitioner shall not commit an offence similar to the offence of which she is accused, or suspected, of the commission of which she 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.
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 LU