Fasal K.S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 04TH DAY OF MAY 2021 / 14TH VAISAKHA, 1943** ## **Bail Appl..No.3380 OF 2021** **CRIME NO.42/2021 OF Pandikad Police Station , Malappuram** ## **PETITIONER/S:** **FASAL K.S AGED 27 YEARS KAPPALIPALLATH, KELANTEPARAMBIL, POTTA LANE, MILLUPADI, MUOPPATHADAM P.O, ALUVA 680310** **BY ADV. SRI.K.MOHAMMED RAFEEQ** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT**| ||**OF KERALA**| ||**682031**| |**2**|**STATION HOUSE OFFICER**| ||**PANDIKKAD POLICE STATION**| ||**676521**| ||**R1 BY PUBLIC PROSECUTOR**| ## **OTHER PRESENT:** ## **P.P.SMT.SREEJA.V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.05.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.3380/2021 **==> picture [18 x 6] intentionally omitted <==** ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.3380 of 2021 ------------------------------Dated this the 4[th] day of May, 2021 ## **O R D E R** This Bail Application filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. The petitioner is the accused in crime No.42/2021 of Pandikad Police Station. The above case is registered against the petitioner alleging offences punishable under Section 354 D(1), 354D(1)(i), 354(D)(2), 366, 376(2)(n) of the Indian Penal code and Section 5(i) r/w Section 6(1),11(iv) r/w Section 12 of the POCSO Act. 3. The prosecution case is that the petitioner contacted the victim regularly through mobile phone and on a day in the month of August, 2020, she was called to Malappuram and thereafter taken to Kakkanad and then committed rape on her. It is alleged that the petitioner committed rape on her at his residential place at Pandikkad. B.A.No.3380/2021 ..3.. Thus, it is alleged that the accused committed the offence. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. The counsel for the petitioner submitted that the petitioner is aged 27 years and the victim is aged 16 years. They became friends through Facebook. The counsel submitted that the petitioner has not committed any offence as alleged by the prosecution. The counsel submitted that the petitioner is in custody from 21.03.2021 onwards. He is ready to abide by any conditions, if this Court grant him bail. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the allegation against the petitioner is very serious and this Court may not release the petitioner on bail, at this stage. 5. It is true that the allegation against the petitioner is very serious. But the petitioner says that he and the victim were in love. But the age of the victim is only 16. At this stage, this Court is not in a position to disbelieve the statement of the victim. But considering the fact that the petitioner is in custody from 22.03.2021 onwards, I think this B.A.No.3380/2021 **==> picture [18 x 8] intentionally omitted <==** Bail application can be allowed, on stringent conditions. There can be a direction to the petitioner not to enter Malappuram District except for the purpose of appearing before the Court concerned and also to appear before the Investigating Officer in this case, till the investigation in the above case is over and trial, if any, is concluded. 6. Moreover, the 2[nd] wave of COVID-19 is spreading in the country and the citizens are facing serious difficulties. In the state of Kerala, the 2[nd] wave of the pandemic is creating lot of problems and even the day-to-day life of the citizens are affected. Everyday, about 25,000 people are tested positive with COVID-19. In such circumstances, this Court has to consider this fact also while considering bail applications. The life is more important than anything. Therefore, I am considering this bail application based on the above pandemic situation. 7. 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 B.A.No.3380/2021 ..5.. 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. These happened during the 1[st] wave of COVID-19 season. 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 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. 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 be released B.A.No.3380/2021 ..6.. - on bail on executing a bond for Rs.50,000/ (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. 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. 3. The petitioner shall not leave India without permission of the jurisdictional Court. 4. The petitioner shall not commit an offence similar to the offence of which B.A.No.3380/2021 ..7.. he is accused, or suspected, of the commission of which he is suspected. 5. 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. 6. The petitioner shall not enter the Malappuram District till the investigation in the above case is over and the trial, if any, is concluded. But, I make it clear that the petitioner can enter the jurisdiction of the Malappuram District for appearing before the Investigating Officer and also for appearing before the Court concerned, in connection with the above case. 7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to B.A.No.3380/2021 **==> picture [18 x 9] intentionally omitted <==** law, even though the bail is granted by this Court. Sd/- **P.V.KUNHIKRISHNAN JUDGE** kkj