Arun Divan K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 03RD DAY OF AUGUST 2020 / 12TH SRAVANA, 1942** ## **Bail Appl..No.8210 OF 2019** **CRIME NO.842/2019 OF KOYILANDY POLICE STATION, KOZHIKODE DISTRICT** ## **PETITIONER/ACCUSED:** **ARUN DIVAN K. AGED 26 YEARS S/O.DIVAKARAN K., ULLAS, MANAMAL, KOILANDI P.O., KOZHIKODE DISTRICT.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.S.K.SAJU** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 S.H.O., KOILANDI POLICE STATION, KOZHIKODE, PIN-673305.** ## **BY SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. No.8210 of 2019 2 ## **O R D E R** **Dated this the 3rd day of August 2020** ... **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.842 of 2019 of Koyilandi Police Station, Kozhikode District. The above case is registered alleging offences punishable under Section 376 of the Indian Penal Code (IPC).** **3. The prosecution case is that, on 29.10.2019, the petitioner committed rape on the de facto complainant who is working as an employee in the beauty parlor run by the petitioner. The de facto complainant who is a native of West Bengal was working under the petitioner for the last four months.** **4. Heard Sri.S.Sreekumar, the learned Senior Counsel appearing for the petitioner as instructed by the counsel and the learned public prosecutor.** **5. The learned Senior Counsel submitted that, even** B.A. No.8210 of 2019 3 **if the entire allegations are accepted, no offence under Section 376 IPC is made out in the light of Annexure A2 compact disc which is produced along with the bail application. The learned Senior Counsel also relied on Annexures A3 to A5.** **6. The learned Public Prosecutor opposed the bail application. The public prosecutor submitted that, the contents of the C.D. is a conversation between the petitioner and the sister of the de facto complainant. That is a matter to be investigated by the investigating officer.** **7. When this bail application came up for consideration on 20.11.2019, this Court passed a detailed order which is extracted hereunder:** _**“On being queried as to whether the investigating officer has ascertained about the aspects borne out from Annexure A2, A3 series and A4 series etc, in the course of investigation, the learned prosecutor would submit that those aspects have not so far been ascertained by the Investigating Officer and that necessary instructions will be given to the IO to conduct a detailed probe regarding the aspects borne out from annexures 2, Annexure 3 series and Annexure**_ B.A. No.8210 of 2019 4 ## _**4 series etc.**_ _**2. The counsel for the petitioner submits that the petitioner through his counsel will handover the mobile phone which was used for recording the conversation in annexure A2 compact disc and also give the details of the calls made between the petitioner on the one hand and the lady de facto complainant and her sister on the other hand, on the basis of which, annexure 2 has been recorded. It is open to the petitioner to do so and the investigating officer may also conduct appropriate probe into all those aspects in the manner known to law.**_ _**3. As the case now been adjourned to enable the prosecution to furnish instructions, it is ordered in the interest of justice that further coercive steps including the proposed arrest of the petitioner in the instant case shall be deferred by the IO until the disposal of this anticipatory bail application. Post on 06/12/2019.”**_ **8. This bail application was filed on 8.11.2019. Even now, this bail application is pending. There is an order from this Court restraining the police in arresting the petitioner. The petitioner has got a** B.A. No.8210 of 2019 5 **definite case that, the incident is not happened. He produced certain materials also before this Court to substantiate his case. Whether the contention of the petitioner is correct or not is to be decided after the investigation. For that purpose also the presence of the petitioner may be necessary.** **9. Since this matter is pending before this Court from November, 2019 onwards and there is an interim order restraining the police in arresting the petitioner, it is not proper to dismiss this bail application at this stage especially in the light of the order dated 20.11.2019 passed by a learned Single Judge of this Court. Considering the entire facts and circumstances of ths case, I think, this bail application can be allowed, on stringent conditions.** **10. 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** B.A. No.8210 of 2019 6 ## **number of inmates inside prisons.** **11. 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.** **12. 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. The petitioner shall appear before the investigating officer on all Mondays' and Fridays' at 10 a.m. till a final report in Crime No.842 of 2019 of** B.A. No.8210 of 2019 7 ## **Koyilandi Police Station is filed;** **3. After interrogation, if the Investigating Officer proposes to arrest the petitioners, 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;** **4. The petitioners 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;** **5. The petitioner shall not leave India without permission of the Court;** **6. The petitioner shall not commit** B.A. No.8210 of 2019 8 **an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected;** **7. 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;** **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**