Abdullakunju U v. State of Kerala

``` 2025:KER:30287 ``` ``` BAIL APPL. NO.4629 OF 2025 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 8[TH] DAY OF APRIL 2025 / 18TH CHAITHRA, 1947 ``` ``` BAIL APPL. NO. 4629 OF 2025 ``` ``` CRIME NO.173/2025 OF Thrikkunnappuzha Police Station, ``` ## **`Alappuzha`** ``` AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.3970 OF 2025 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/S:`** ``` ABDULLAKUNJU U AGED 61 YEARS S/O. USMANKUTTY, ANDOLIL HOUSE, PALLIPPATTUMURI, THRIKKUNNAPUZHA PO, KARTHIKAPPALLY, THRIKKUNNAPUZHA, ALAPPUZHA, PIN - 690515 ``` ``` BY ADVS. ALEX K.JOHN JILCY JACOB NINAN THOMAS GEGO GEORGE ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` SR PP-NOUSHAD K A ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO.4629 OF 2025 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30287 ``` ``` 2 ``` ## **P.V.KUNHIKRISHNAN, J** ## **-------------------------------B.A.No.4629 of 2025 ------------------------------Dated this the 08[th] day of April, 2025** ## **O R D E R** This Bail Application is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita (BNSS). 2. Petitioner is an accused in Crime No.173/2025 of Thrikkunnappuzha Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 376(2)(n), 323, 324 & 506 r/w Section 34 of the Indian Penal Code. 3. The prosecution case is that; the defacto complainant, who is the victim in this case, complained that the petitioner raped the defacto complainant by giving false promise. It is alleged that the petitioner had relationship with one Shanavaz and he had sexual intercourse with the victim on several occasions. On one occasion, the victim was presented to the petitioner is the allegation. Hence, it is alleged that the accused committed the offence. **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30287 ``` ``` BAIL APPL. NO.4629 OF 2025 ``` `3` 4. Heard counsel for the petitioner and the Public Prosecutor. 5. The counsel for the petitioner submitted that, even if the entire allegation are accepted, the offence of rape is not there. It is only a consensual sexual intercourse. He submitted that the petitioner is ready to abide by any conditions, if this Court grants him bail. 6. Public Prosecutor opposed the bail application. 7. This Court perused the First Information Statement (FIS) given by the defacto complainant. According to the petitioner, she is a divorcee. She met with one Shanavaz. She started business with the above Shanavaz. It is stated that on 22.02.2021, the Shanavaz took her to a hotel and there was some forceful sexual intercourse by him. Thereafter, it is stated that, the Shanavaz and the victim traveled at different places and there was sexual intercourse between them from a lodge at Attakulangara, Trivandrum, a lodge at Alappuzha and different lodges at Ernakulam, **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30287 ``` ``` BAIL APPL. NO.4629 OF 2025 ``` `4` Mumbai, Vashi, Dlehi etc. In March 2021, it is alleged that the victim was presented to the petitioner and on that day, the petitioner had sexual intercourse with the victim. Thereafter, also as per the FIS, the relationship between the petitioner and Shanavaz continued. The complaint is filed on 2025. I do not want to make any further opinion about the same. Considering the facts and circumstances of the case, I think, the petitioner can be released on bail after imposing stringent conditions. There can be a direction to the petitioner to appear before the Investigating Officer for two days continuously from 10:00a.m to 04:0pm., thereafter, if arrest is recorded, there can be a direction to the Investigating Officer to release the petitioner on bail after imposing stringent conditions. 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 ``` BAIL APPL. NO.4629 OF 2025 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30287 ``` `5` 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. Recently the Apex Court in **Siddharth v State of Uttar Pradesh and Another [2021(5)KHC 353]** considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder. “12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. (Joginder Kumar v. State of UP and Others (1994 KHC 189: (1994) 4 SCC 260: 1994 (1) KLT 919: 1994 (2) KLJ 97: AIR 1994 SC 1349: 1994 CriLJ 1981)) If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.” **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30287 ``` ``` BAIL APPL. NO.4629 OF 2025 ``` `6` 10. In **Manish Sisodia v. Central Bureau of** **Investigation [2023 KHC 6961]** , the Apex Court observed that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. 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 two weeks from today and shall undergo interrogation. He shall appear two days continuously from 10:00a.m to 04:00pm., after surrender. 2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail on executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties ``` BAIL APPL. NO.4629 OF 2025 ``` **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30287 ``` `7` each for the like sum to the satisfaction of the arresting officer concerned. 3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall cooperate 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. 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. Needless to mention, it would be well within the powers of the investigating **==> picture [58 x 57] intentionally omitted <==** ``` 2025:KER:30287 ``` ``` BAIL APPL. NO.4629 OF 2025 ``` `8` officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. 7. The observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in **Anzar Azeez v. State of Kerala** [2025 SCC OnLine KER 1260] is applicable in this case also. 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. The prosecution and the victim are at liberty to approach the jurisdictional Court ``` 2025:KER:30287 ``` ``` BAIL APPL. NO.4629 OF 2025 ``` **==> picture [58 x 57] intentionally omitted <==** `9` to cancel the bail, if any of the above conditions are violated. **Sd/P.V.KUNHIKRISHNAN, JUDGE** SSG