Hashik Rahman v. State of Kerala and Nilambur Police Station & XXXXXX XXXXX

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 6[TH] DAY OF MAY 2022 / 16TH VAISAKHA, 1944** ## **BAIL APPL. NO. 3251 OF 2022** ## **AGAINST THE ORDER/JUDGMENT IN CRMP 779/2022 OF JUDICIAL MAGISTRATE OF** ## **FIRST CLASS ,NILAMBUR** ## **PETITIONERS:** 1 HASHIK RAHMAN AGED 38 YEARS S/O.ABDUL RAHIMAN, MANGALASSERY HOUSE, CHAKKALAKUTH, NILAMBUR P.O., MALAPPURAM DISTRICT PIN - 679329 BY ADVS.BABU.S.NAIR ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER NILAMBUR POLICE STATION, MALAPPURAM DISTRICT , PIN 679329 3 XXXXXX XXXXX (SOUGHT TO BE IMPLEADED AS ADDITIONAL 3RD RESPONDENT) BY ADV PUBLIC PROSECUTOR K.M SATHYANATHA MENON ADV SANAL P.RAJ - P.P. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.3251 of 2022 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.3251 of 2022 ------------------------------Dated this the 6[th] day of May, 2022 ## **O R D E R** This Bail Application is filed under Section 439 of Criminal Procedure Code. 2. Petitioner is the accused in Crime No.169/2022 of Nilambur Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 366, 354A, 354D, 376(2), 384 & 506 of IPC. 3. The prosecution case is that the petitioner's father and the petitioner are instructors in a Martial Arts called 'Thaikondo', a Korean form of Martial Arts. The petitioner's father owned an institute at Nilambur in the name as 'Faz way of life'. According to the defacto complainant, she and her children started going to the said institute for physical fitness training from the year 2018. The petitioner is also running another B.A.No.3251 of 2022 3 institute of similar nature in Dubai and he comes to the institute for training during the time when he come from abroad. According to the defacto complainant, there are several people including women coming to the institute for physical fitness training and the defacto complainant got acquainted with the petitioner. It is alleged that they became friends and started to make telephone calls and messages including chatting. It is the case of the prosecution that even when the petitioner was abroad, there was frequent calls and messages. It is also alleged that when the covid pandemic started in the year 2020, the petitioner borrowed an amount of Rs.3 lakh from the defacto complainant and the same has not been returned. Subsequently in the month of March 2021, when the petitioner came to the native place, again the defacto complainant had given gold ornaments weighing 4 sovereigns for pledging. It is the case of the prosecution that in the month of September 2021, it is alleged that when the defacto complainant had taken her younger son for badminton coaching, the petitioner came and took her forcibly into a car and by kissing and hugging inside the car, the modesty of the B.A.No.3251 of 2022 4 defacto complainant was outraged. It is further alleged that money and gold ornaments given by the defacto complainant to the petitioner was without the knowledge of her husband. It is further alleged that in the month of October 2021, when the defacto complainant went to pick her son from the institute, the petitioner again took the defacto complainant forcibly and had attempted to commit rape on her. It is further alleged that the said act was being shot in the mobile phone. Thereafter, the diamond ring of the defacto complainant was demanded threatening that the petitioner is having photos which shows intimate relationship between the petitioner and the defacto complainant and the same will be published. It is further alleged that the photo of the defacto complainant was posted by the petitioner in the whatsapp and in instagram. Hence the complaint was filed. The petitioner was arrested in connection with the above case on 14.04.2022. 4. Heard counsel for the petitioner and the Public Prosecutor. The counsel for the petitioner submitted that even if the entire allegations are accepted, no offence is made out. The B.A.No.3251 of 2022 5 Counsel submitted that a bare perusal of the FI statement given by the defacto complainant would show that the alleged act if any happened was with full consent of the defacto complainant. The Counsel submitted that the petitioner and the defacto complainant are married people and they have children. The Counsel submitted that the petitioner is ready to abide any condition, if this Court grant him bail. The Public Prosecutor seriously opposed the grant of bail. This Court perused the FI Statement given by the defacto complainant. I do not want to make any observations about the merit of this case. It is a fact that the petitioner is in custody from 14.04.2022 onwards. The petitioner and the defacto complainant are married people and they are having children. Considering the entire facts and circumstances of the case, I think the petitioner can be released on bail on stringent conditions. 5. 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, B.A.No.3251 of 2022 6 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. 6. 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. Petitioner shall be released 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 B.A.No.3251 of 2022 7 to dissuade him from disclosing such facts to the Court or to any police officer. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. Petitioner shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they suspected. 5. The petitioner shall appear before the Investigating Officer on every Sunday between 10 am and 11 am till the final report is filed. 6. Petitioner shall not enter the jurisdictional limit of the Nilambur Police Station till final report is filed except for the purpose of appearing before the Investigating Officer. 7. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even B.A.No.3251 of 2022 8 though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions. sd/- ## **P.V.KUNHIKRISHNAN,** **JUDGE** Nsd 9 ## B.A.No.3251 of 2022 ## **APPENDIX OF BAIL APPL. 3251/2022** PETITIONER ANNEXURES Annexure B TRUE COPY OF THE ORDER OF THE J.F.C.M., NILAMBUR IN CRL.M.P.NO.779/2022 DATED, 19-42022.