Indazar Keloth v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** ## **Bail Appl..No.5834 OF 2020** **CRIME NO.1455/2020 OF KAZHAKKUTTOM POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **INDAZAR KELOTH AGED 28 YEARS VILLIYAPALLY, VADAKARA, PERAMBRA, KOZHIKODE RURAL, KERALA - 673525** **BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM - 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 5834 of 2020 2 **P.V.KUNHIKRISHNAN, J. ===================== B.A.No.5834 of 2020 ===================== Dated this the 17[th] day of September, 2020** ## **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.1455/2020 of Kazhakuttom Police Station, Thiruvanathapuram District. The above case is registered against the petitioner alleging offences punishable under Sections 366, 376(1), 376(2)(n) of IPC. The petitioner was arrested on 02.09.2020 and he is in custody from that date onwards. 3. The prosecution case is that, the victim is hailing from Kozhikode. The petitioner and the victim became friends. A love affair started. Accused promised to marry the victim. In June 2017 accused took the victim to B.A.No. 5834 of 2020 3 apartment at Kazhakuttom and later in 2017 to Hilltop Women's PG at Kallampalli, Thiruvanathapuram. It is alleged that on 21.02.2018, the petitioner took the victim to Fort View hotel at Overbridge, Thiruvanathapuram. It is further alleged that on 10.08.2018 also the petitioner took the victim to an apartment at Kochi. It is alleged that the petitioner committed rape. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that, the petitioner is in custody from 02.09.2020 onwards. The learned counsel for the petitioner submitted that, the petitioner and the victim were in love. The parents of the parties were aware about the love affair. The learned counsel for the petitioner submitted that, the engagement of the marriage was also conducted. The learned counsel produced Annexure-5 photographs to prove the same. The learned counsel submitted that, even if the entire allegations are accepted, no offence under Section 376 of IPC is made out in the light of the judgment of the Apex B.A.No. 5834 of 2020 4 Court in **Dhruvaram Murlidhar Sonar (Dr) Vs. State of Maharashtra and others (2019 (1) KHC B.A.No. 4857 of 2020 5 403)** and **Pramod Suryabhan Pawar Vs. State of Maharashtra and another (2019 KHC 6829).** According to the counsel, the Apex Court observed that when there is promise to marry and thereafter committing sexual intercourse and subsequently withdrawing from the promise will not attract the offence under Section 376 of the IPC. The learned counsel submitted that, the admitted prosecution case is that, the petitioner committed rape on the victim girl promising that he will marry her. It is the prosecution case is that, subsequently, the petitioner withdrew from the same. According to the learned counsel, in the light of the judgment of the Apex Court, no offence is made out, even if the entire prosecution case is accepted. The learned counsel submitted that, the reason for withdrawing from the Marriage is not a factor to be considered at this stage. 6. The learned Public Prosecutor seriously opposed the bail application. The learned Public Prosecutor B.A.No. 5834 of 2020 5 submitted that, the petitioner in effect cheated a girl aged 18 years. This Court may not release the petitioner on bail at this stage. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. The petitioner is in custody from 02.09.2020 onwards. Now 15 days over. The admitted prosecution case is that, there was sexual intercourse promising that the accused will marry the victim. Subsequently, the accused withdrew from the promise. I do not want to make any observations about the merit of the case. It is a matter to be investigated by the Investigating Officer. Considering the entire facts and circumstances of this case and considering the period of detention of the petitioner, I think, this bail application can be allowed on stringent conditions. 8. 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 B.A.No. 5834 of 2020 6 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. 9. 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. 10. 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 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_ B.A.No. 5834 of 2020 7 _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 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;_ B.A.No. 5834 of 2020 8 _6. The petitioner shall not enter Kozhikode District where the victim girl is residing till the investigation is over. If any final report is filed and the Court took cognizance of the offence, the above condition will continue till trial is over._ 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** LU