Kerala High Court
Sarath vs State Of Kerala on 18 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
FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942
Bail Appl..No.5124 OF 2020
CRIME NO.142/2020 OF PALLICKAL POLICE STATION, THIRUVANANTHAPURAM
DISTRICT.
PETITIONER/ACCUSED:
SARATH
AGED 30 YEARS, S/O.SIVANKUTTY,
SIVASAILAM, MAMOM, ATTINGAL, THIRUVANANTHAPURAM
DISTRICT.
PIN-695104
BY ADV. SRI.P.ANOOP (MULAVANA)
RESPONDENT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA
PIN-682031
BY SRI.RENJITH.T.R., PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
18.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.NO.5124 OF 2020 2
O R D E R
Dated this the 18th day of September 2020 ...
This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.
2. The petitioner is the accused in Crime No. 142 of 2020 of Pallickal Police Station, Thiruvananthapuram District. The above case is registered against the petitioner alleging offences punishable under Sections 376, 506(i) of the Indian Penal Code (IPC).
3. The prosecution case is that, on 18.8.2019, the accused and the victim got engaged before Navaikulam Sankara Narayana Temple and thereafter on 31.8.2019, the petitioner committed forceful rape on the victim at a home stay at Kovalam. Hence, it is alleged that, the petitioner committed the said offence.
4. Heard the learned counsel for the petitioner and the learned public prosecutor. B.A.NO.5124 OF 2020 3
5. The learned counsel for the petitioner submitted that, the allegation as per F.I.statement of the victim is that, the petitioner committed rape on the victim with a promise to marry her. The counsel submitted that, even if the entire allegations are accepted, no offence under Section 376 IPC is made out. The counsel submitted that, the Apex Court in Dr.Dhruvaram Muralidhar Sonar v. The State of Maharashtra [2019(1) KHC 403] and Pramod Suryabhan Pawar v. The State of Maharashtra [2019 KHC 6829] considered this point and held that if there is a promise to marry and thereafter committed rape and subsequently withdrawn from the promise to marry, the offence under Section 376 IPC will not be made out. The counsel submitted that, the petitioner is aged 30 years and the victim is aged 22 years. The counsel submitted that, the petitioner is ready to abide any conditions, if this Court is granting bail to him.
6. The learned Public Prosecutor opposed this bail application. The public prosecutor submitted B.A.NO.5124 OF 2020 4 that, the custodial interrogation of the petitioner is necessary in this case.
7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. It is an admitted fact that, the petitioner is aged 30 years and the victim is aged 22 years. It is an admitted fact that, the marriage between the petitioner and the victim girl was fixed and thereafter the alleged rape was committed. It is also an admitted fact that, the petitioner and the victim girl are relatives. The prosecution case is that, the petitioner took the victim girl to a home stay at Kovalam and stayed there. While staying in the home stay, the petitioner committed rape on the victim. That also after the engagement ceremony of the petitioner and the victim girl. I do not want to make any observation about the merit of this case. Considering the entire facts and circumstances of this case, this bail application is allowed on stringent conditions.
B.A.NO.5124 OF 2020 5
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.
10. Considering the dictum laid down in the above decision and considering the facts and B.A.NO.5124 OF 2020 6 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, he 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 B.A.NO.5124 OF 2020 7 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. 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 he is accused, or suspected, of the commission of which he is suspected;
6. The petitioner shall appear before the investigating officer on all Mondays' at 10 a.m. till the final report in Crime No. 142 of 2020 of Pallickal Police Station, Thiruvananthapurm District is filed;
7. The petitioner shall strictly abide by the various guidelines B.A.NO.5124 OF 2020 8 issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic;
8. 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
pkk JUDGE