High Court of KeralaSingle Judge2020-09-29Bail granted to petitioners 2 to 5; bail denied...

B.A.No.5955 of 2020 (Arun & others v. State of Kerala)

Case / Petition Number:B.A.No.5955 of 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P.V.KUNHIKRISHNAN
Judgment Date: 2020-09-29
Court Decision / Holding: The court held that the 1st petitioner is not entitled to bail under Section 438 CrPC given the serious allegations. It allowed bail for petitioners 2–5 with conditions: (1) appearance before the Investigating Officer within ten days for interrogation; (2) if the IO proposes arrest of petitioners 2–5, they shall furnish bonds of Rs.50,000 with two solvent sureties; (3) petitioners 2–5 shall appear as required and shall not induce or threaten any witness; (4) they shall not leave India without court permission; (5) they shall not commit any similar offence; (6) they shall comply with COVID-19 social distancing guidelines; (7) any violation may lead to cancellation of bail. The bail application of the 1st petitioner is dismissed.
Final Disposition: Bail granted to petitioners 2 to 5; bail denied for the 1st petitioner. The order imposes specific conditions and COVID-19 related guidelines.

Parties to the Case

Appellants / Petitioners

ARUN
ANILKUMAR
SHEELA ANIL
MICHAEL ROY
CHRISTEENA

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Sri. Ajith Murali, Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Shajin S. Hameed

Counsels for Respondents

• Sri. Ajith Murali, Public Prosecutor

Case Synopsis & Summary

This High Court of Kerala bail application concerns five petitioners in Crime No.656/2020 of Thumba Police Station, Thiruvananthapuram, alleging offences under the Protection of Children from Sexual Offences Act, 2012 (Sections 3, 4, 7, 8, 21), the Prohibition of Child Marriage Act, 2006 (Sections 9, 10, 11) and Section 376 IPC. The first petitioner is accused of raping a minor girl and allegedly marrying her; the other petitioners are said to have aided him. The petitioners seek bail under Section 438 CrPC. The counsel for the petitioners submitted that the first petitioner lived with the victim and that the parents attacked him; he left, allegedly unaware of the girl’s minority; petitioners 2–5 contend there is no direct allegation against them. The Public Prosecutor opposed bail for the first petitioner on the serious nature of the offence; for petitioners 2–5, he suggested conditional bail if granted. The Court, after hearing, denied bail to the first petitioner but allowed bail for petitioners 2–5, subject to conditions including interrogations within 10 days, bonds of Rs.50,000 with two sureties, appearance as required, travel restrictions, and compliance with COVID-19 social distancing norms. The order cites social distancing directives from COVID-19 jurisprudence and reiterates bail as a general rule with jail as an exception, citing Chidambaram P. v. Directorate of Enforcement and COVID-19 prison guidelines.

Provisions of Law Cited

Section 3, 4, 7, 8 & 21 of the Protection of Children from Sexual Offences Act, 2012Sections 9, 10 & 11 of the Prohibition of Child Marriage Act, 2006Section 376 IPCSection 438 Cr.P.C.

Legal Doctrines & Maxims

Bail is the rule and the jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners’ counsel argued that the first petitioner and the minor victim cohabited, and that the parents attacked him; he left the home and allegedly did not know the victim was a minor. Petitioners 2–5 are said to have aided the first accused, but there is no direct allegations against them. They urged that bail be considered for petitioners 2–5, with strict conditions, given the supposed lack of direct involvement by 2–5 and to uphold the principle of fair trial under bail norms.

Contentions of Respondents

The Public Prosecutor opposed bail for the first petitioner due to the grave nature of the alleged rape of a minor. He suggested continuing detention for the 1st petitioner under Section 438 CrPC; for petitioners 2–5, he proposed bail with stringent conditions if granted, ensuring cooperation with the investigation.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID-19 Virus In Prisons case	—	Positive	Cited to justify social distancing norms and related directions in prisons as part of the COVID-19 context.
Chidambaram P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Cited for the enduring principle that bail is the rule and jail is the exception, guiding the court’s approach to bail.
W.P(C)No.9400 of 2020	W.P(C)No.9400 of 2020	Mentioned Only	Referenced as part of the contemporaneous judicial directions for COVID-19 considerations, not as a binding precedent for the specific issue.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against B.A.No.5955 of 2020 (Arun & others v. State of Kerala) and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

B.A.No.5955 of 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 29TH DAY OF SEPTEMBER 2020 / 7TH ASWINA, 1942** ## **Bail Appl..No.5955 OF 2020** **CRIME NO.656/2020 OF Thumba Police Station , Thiruvananthapuram** |**PETITIONERS**<br>**:**|**PETITIONERS**<br>**:**|| |---|---|---| |**1**||**ARUN**| |||**AGED 24 YEARS**| |||**S/O. ANILKUMAR,**| |||**T.C.2/1997, KUNJAYAN VILAKAM, KULATHOOR P.O**| |||**THIRUVANANTHAPURAM-695583**| |**2**||**ANILKUMAR**| |||**AGED 53 YEARS**| |||**S/O. SIVASANKARAN,**| |||**99/2631, SRI PADMAM, NEAR SNM LIBRARY, KULATHOOR**| |||**P.O.,**| |||**THIRUVANANTHAPURAM,**| |||**PIN-695583**| |**3**||**SHEELA ANIL**| |||**AGED 47 YEARS**| |||**W/O. ANILKUMAR,**| |||**T.C. 2/1997, KUNJAYAN VILAKAM, KULATHOOR P.O.,**| |||**THIRUVANANTHAPURAM.**| |||**695583**| |**4**||**MICHAEL ROY**| |||**AGED 34 YEARS**| |||**S/O. MICHAEL,**| |||**T.C.76/843, PUTHUVEEDU, KUDAVOOR, ANAYARA P.O.,**| |||**THIRUVANANTHAPURAM.**| |||**695029**| |**5**||**CHRISTEENA**| |||**AGED 23 YEARS**| |||**D/O. LALU,**| |||**VADAKATHIL HOUSE, MANDAPAKUNNU, POTHENCODE P.O.,**| |||**ANDOORKONAM, THIRUVANANTHAPURAM.**| |||**PIN-695584**| |||**BY ADV. SRI.SHAJIN S.HAMEED**| B.A.No.5955 of 2020 2 ## **RESPONDENT:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN-682031** **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.5955 of 2020 3 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.5955 of 2020 ------------------------------Dated this the 29[th] day of September, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioners are the accused in Crime No.656 of 2020 of Thumba Police Station, Thiruvananthapuram. The above case is registered against the petitioners alleging offences punishable under Sections 3, 4, 7, 8 & 21 of the Protection of Children from Sexual Offences Act, 2012. The offences under Sections 9, 10 & 11 of the Prohibition of Child Marriage Act, 2006 and Section 376 IPC is also alleged. 3.The prosecution case is that the 1[st] petitioner committed rape on the victim girl. It is also alleged that the 1[st] petitioner married the minor girl and thereafter committed the offence. The further case is that now the 1[st] petitioner abandoned the minor girl. The petitioners 2 to 5 aided the 1[st] B.A.No.5955 of 2020 4 accused. 4. Heard the counsel for the petitioners and the Public Prosecutor. 5. The counsel for the petitioner submitted that the 1[st] petitioner was living with the victim girl at her house. The parents of the victim attacked him. Therefore, he left the house. The counsel submitted that the 1[st] petitioner was not aware that the victim girl was a minor. The counsel submitted that as far as the petitioners 2 to 5 are concerned,there is no allegation. 6.The Public Prosecutor opposed the bail application as far as the 1[st] petitioner is concerned. The Public Prosecutor submitted that the allegation against the 1[st] petitioner is that he committed rape on a minor girl. In such situation this Court may not pass orders under Section 438 Cr.P.C. As far as the petitioners 2 to 5 are concerned, the Public Prosecutor submitted that if this Court is granting bail, stringent conditions may be imposed. - 7.After hearing both sides, I think the 1[st] petitioner is not B.A.No.5955 of 2020 5 entitled orders under Section 438 Cr.P.C. The allegation against him is very serious. I do not want to make any observation about the merit of the case. But as far as the petitioners 2 to 5 are concerned, the allegation is only to the effect that they aided the 1[st] accused. 8. Considering the entire facts and circumstances of the case, I think the petitioners 2 to 5 can be released on bail u/s.438 Cr.P.C . 9. 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. 10. 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 B.A.No.5955 of 2020 6 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. 11. 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 petitioners 2 to 5 shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioners 2 to 5, they 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. B.A.No.5955 of 2020 7 3. The petitioners 2 to 5 shall appear before the Investigating Officer for interrogation as and when required. The petitioners 2 to 5 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. Petitioners 2 to 5 shall not leave India without permission of the jurisdictional Court. 5. Petitioners 2 to 5 shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected. 6. The petitioners 2 to 5 shall strictly abide by the various guidelines issued by the State Government and Central Government B.A.No.5955 of 2020 8 with respect to keeping of social distancing in the wake of Covid 19 pandemic. 7. If any of the above conditions are violated by the petitioners 2 to 5, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Bail application of the 1[st] petitioner is dismissed. SD/- **P.V.KUNHIKRISHNAN, JUDGE** cms