Hilal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942 Bail Appl..No.6330 OF 2020** **CRIME NO.1792/2020 OF Pathanapuram Police Station , Kollam** ## **PETITIONER:** **HILAL AGED 37 YEARS, S/O IBRAHIM, THANKERIL VEEDU, AROORKUTTY, VADUTHALA JATTI P.O., AROORKUTTY, CHERTHALA, ALAPPUZHA DISTRICT. PIN- 688535 BY ADV. SRI.MANOJ RAMASWAMY** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM PIN-682031 2 THE STATION HOUSE OFFICER PATHANAPURAM POLICE STATION, KOLLAM RURAL, KOLLAM DISTRICT PIN-689695 SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 6330 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No. 6330 of 2020 ------------------------------Dated this the 7[th] day of October, 2020 ## **O R D E R** This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the accused in Crime No.1792 of 2020 of Pathanapuram Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 376(2)(n), 354C, 506(i) IPC and Section 66 E r/w 67 of Information Technology Act. 3. The prosecution case is that the accused is conducting a mobile phone shop. The case of prosecution is that the de facto complainant entrusted her phone to the accused for repairing. The accused copied her photographs from her phone and using that he started to threaten the de facto complainant. On B.A.No. 6330 of 2020 3 29.6.2020 at 11.30 am and on the previous date in May 2020 the accused directed the de facto complainant to reach at a place at Kalanjoor. When she reached the said place the accused take her to his room forcefully and committed rape on her. The accused videographed the same and later sent the photographs and the videographs to her husband who is working abroad. Hence, it is alleged that the accused committed the above said offences. 4. Heard the counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that this is the second bail application filed by the petitioner. The counsel submitted that the earlier bail application was withdrawn because this Court was not inclined to grant him bail. The counsel submitted that even if the entire allegations are accepted, the offence under Section 376 IPC is not maintainable. The counsel submitted that the petitioner is ready to abide any condition, if this Court grant him bail. The B.A.No. 6330 of 2020 4 counsel also submitted that the petitioner is in custody for the last 72 days. 6. The Public Prosecutor seriously opposed the bail application. The Public Prosecutor opposed the bail application mainly for the reason that after commission of the offence, the petitioner forwarded the photographs and videographs of the de facto complainant to her husband and thereafter her family life itself is spoiled by the petitioner. It is also submitted by the Public Prosecutor that the petitioner threatened the de facto complainant that he will use these photographs and videographs in future also. 7. It is true that the allegation against the petitioner is very serious. But it is a fact to be considered that the petitioner is in custody for the last 72 days. The petitioner is aged 37 and the victim is aged 34. She is a married lady and her husband is in Gulf. I perused the First Information Statement given by the victim. According to her, she went to the place of accused and thereafter the petitioner committed sexual offence. I do not want to make any observation about the merit of the case. B.A.No. 6330 of 2020 5 8. Considering the entire facts and circumstances of the case, I think this bail application can be allowed on stringent conditions. The victim is residing within the jurisdiction of Pathanapuram Police Station. Therefore, there can be a direction to the petitioner not to enter the Pathanapuram Police Station till final report is filed in this case. 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 judgments, observed that, the basic jurisprudence relating to B.A.No. 6330 of 2020 6 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. 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 B.A.No. 6330 of 2020 7 facts of the case so as 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 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 jurisdictional limit of Pathanapuram Police Station, till final report is filed in Crime No.1792 of 2020. B.A.No. 6330 of 2020 8 7. 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** cms