High Court of KeralaSingle Judge2020-10-01Bail granted on stringent conditions.

Amal Jose Mathew v. State of Kerala

Case / Petition Number:B.A.No.6146 of 2020

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-10-01
Court Decision / Holding: The Bail Application is allowed with stringent conditions: (1) petitioner to appear before the Investigating Officer within ten days for interrogation; (2) if the IO proposes arrest thereafter, petitioner to be released on bail on a bond of Rs. 50,000 with two solvent sureties of like amount; (3) petitioner to appear for interrogation as required and not to attempt to influence witnesses; (4) petitioner shall not leave India without court permission; (5) petitioner shall not commit any similar offence; (6) petitioner to strictly abide by State and Central guidelines on social distancing due to COVID-19. If violated, bail may be cancelled.
Final Disposition: Bail granted on stringent conditions.

Parties to the Case

Appellants / Petitioners

Amal Jose Mathew

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam - 682031

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Syam J Sam

Counsels for Respondents

• Public Prosecutor, High Court of Kerala (Renjith T.R.)

Case Synopsis & Summary

Amal Jose Mathew, the petitioner in Bail Application No. 6146 of 2020, seeks bail under Section 438 CrPC in a case registered as Crime No. 3555/2020 of Kottarakkara Police Station, Kollam, alleging offences under Section 376 IPC. The factual matrix traces a long-standing relationship between the petitioner and the de facto complainant who, according to the initial allegations, had sexual intercourse with him on the promise that he would marry her. The complainant later married someone else; she became pregnant and, after marriage dissolution, filed a statement claiming continued sexual abuse by the petitioner following the promise to marry. The petitioner’s counsel argues that even if the allegations are accepted, no offence under Section 376 is made out since a promise to marry followed by intercourse does not automatically constitute the crime; he expresses willingness to accept the de facto complainant and the child and to comply with stringent bail conditions. The Public Prosecutor opposes bail, providing the FI statement. The High Court relies on Supreme Court authorities such as Dhruvaram Murlidhar Sonar and Pramod Suryabhan Pawar to note that each case requires separate consideration of a promise-to-marry scenario. The Court emphasizes bail as the rule and jail as the exception, and grants bail with conditions in view of COVID-19 social-distancing guidelines and related directives. It directs appearance before the IO within 10 days, bond of Rs.50,000 with two sureties, non-flight, non-repetition of similar offences, and adherence to COVID-19 guidelines.

Provisions of Law Cited

Section 438 of CrPCSection 376 of IPC

Legal Doctrines & Maxims

Bail is the rule and the jail is the exception.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant’s counsel submitted that, even if the allegations are accepted in toto, no offence under Section 376 IPC is made out since a promise to marry followed by consensual intercourse does not automatically attract the offence; he is ready to accept the de facto complainant and the child and to comply with stringent bail conditions, arguing that the victim’s actions and alleged deception by the victim and her new husband cannot bar bail. He contends for maintaining social distancing and safeguarding the accused’s right to a fair trial during the pandemic.

Contentions of Respondents

The State, through the Public Prosecutor, opposed bail. The prosecution highlighted the serious nature of the alleged offence, the likelihood of interference with witnesses, and the risk of flight. It relied on the FI statement and urged that custodial detention or denial of bail is warranted until a proper investigation is completed, notwithstanding the promissory aspect.”

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Dhruvaram Murlidhar Sonar (Dr) Vs. State of Maharashtra and others	2019 (1) KHC B.A.No. 4857 of 2020 5 403	Positive	Cited to support that a promise to marry followed by intercourse does not automatically attract 376, with each case needing separate consideration.
Pramod Suryabhan Pawar Vs. State of Maharashtra and another	2019 KHC 6829	Positive	Followed for the proposition that, upon a promise to marry followed by intercourse, liability under 376 requires case-specific evaluation.
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Used to emphasize the basic bail jurisprudence: bail is the rule, refusal is the exception.
Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)	Suo Motu Writ Petition(C) No.1 of 2020	Positive	Cited for COVID-19 related prison guidelines to minimize inmate population and promote social distancing.
W.P(C)No.9400 of 2020	W.P(C)No.9400 of 2020	Positive	Full Bench directions in the Kerala High Court regarding measures to reduce prison population and ensure safety amid the pandemic.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **Bail Appl..No.6146 OF 2020** **CRIME NO.3555/2020 OF KOTTARAKKARA POLICE STATION, KOLLAM** ## **PETITIONER/S:** **AMAL JOSE MATHEW AGED 25 YEARS VIVILAYIL VEEDU, THALAVUR, KOTTARAKARA, KOLLAM - 691502** **BY ADV. SRI.SYAM J SAM** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM - 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.6146 of 2020 2 ## **P.V.KUNHIKRISHNAN, J. ================== B.A.No.6146 of 2020 ================== Dated this the 1[st] day of October, 2020** ## **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. 3555 of 2020 of Kottarakkara Police Station, Kollam District. The above case is registered against the petitioner alleging offences punishable under Section 376 of the Indian Penal Code (IPC). 3. The prosecution case is that, from school days onwards the petitioner and the de facto complainant were in love affair. Subsequently in 2016 the applicant saw the de facto complainant from Ernakulam. Thereafter, there was communication between the petitioner and the de facto B.A.No.6146 of 2020 3 complainant. It is admitted in the FI statement that there was sexual intercourse between the petitioner and the de facto complainant on several occasions, based on the promise of the petitioner that he will marry her. Subsequently there was some misunderstanding between the petitioner and the de facto complainant and the de facto complainant married another person about 7 months back. At that time the de facto complainant was pregnant. She delivered a child. Knowing about the same the husband divorced her. Now the de facto complainant filed a statement before the police alleging that the petitioner promised to marry her and thereafter the petitioner sexually abused the de facto complainant. 4. Heard the learned counsel 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. The learned counsel for the petitioner submitted that, the only allegation against the petitioner is B.A.No.6146 of 2020 4 that, he promised to marry the de facto complainant and thereafter committed the sexual offences. The learned counsel for the petitioner submitted that, he is ready to accept the de facto complainant and the child even now. The learned counsel for the petitioner also submitted that, the petitioner is ready to abide any conditions, if this Court grant him bail. According to the counsel, the victim cheated the petitioner and her new husband. 6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor made available the first information statement given by the victim in this case. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. The admitted prosecution case is that, there was a promise to marry from the side of the petitioner and thereafter, the de facto complainant gave consent for sexual intercourse. This point is considered by the Apex Court. In **Dhruvaram Murlidhar Sonar (Dr) Vs. State of Maharashtra and** B.A.No.6146 of 2020 5 **others (2019 (1) KHC B.A.No. 4857 of 2020 5 403)** and **Pramod Suryabhan Pawar Vs. State of Maharashtra and another (2019 KHC 6829)** the Apex Court held that in all cases in which there is promise to marry and thereafter committing sexual intercourse and subsequently withdrawing from the promise will not attract the offence under Section 376 of the IPC. Each case is to be considered separately. I do not want to make any observations about the merit of the case. Considering the entire facts and circumstance of the case, I think 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. B.A.No.6146 of 2020 6 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 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_ B.A.No.6146 of 2020 7 _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 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 strictly abide by the various guidelines issued by the State Government_ B.A.No.6146 of 2020 8 _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