Jishnu Ponnappan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942** ## **Bail Appl..No.5230 OF 2020** **CRIME NO.790/2020 OF KADUTHURUTHI POLICE STATION, KOTTAYAM DISTRICT** ## **PETITIONER/ACCUSED:** **JISHNU PONNAPPAN AGED 29 YEARS S/O. PONNAPPAN, JISHA BHAVAN, VADAYAR, THALAYOLAPPARAMBU KOTTAYAM DISTRICT PIN-686605** **BY ADVS. SRI.S.RAJEEV SRI.K.ANAND (A-1921) SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** ## **R1 BY SRI.RENJITH.T.R.,PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. NO.5230 OF 2020 2 ## **O R D E R** **Dated this the 8th day of September 2020** … **This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.** **2. The petitioner is the accused in Crime No. 790 of 2020 of Kaduthuruthi Police Station, Kottayam District. The above case is registered against the petitioner alleging offences punishable under Sections 342, 376(2)(n) and 506 of the Indian Penal Code (IPC).** **3. The prosecution case is that, the accused committed sexual assault on the victim on 10.2.2020 in the house of the accused. Thereafter on 17.12.2019 and 26.3.2020, the accused committed rape on the victim from hotels. The case of the victim was that, the petitioner committed rape without her** B.A. NO.5230 OF 2020 3 ## **consent.** **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 aged 29 years and the victim aged 28 years. The alleged sexual intercourse was on 10.2.2019, 17.12.2019 and** **26.3.2020. According to the counsel, the F.I. Statement was given on 5.8.2020. The counsel submitted that, the petitioner and the victim were in love. Subsequently, because of some misunderstanding between them, this complaint is filed. The counsel submitted that, the petitioner is still in love with the victim and he is ready to abide any conditions, if this Court is granting bail to the petitioner.** **6. The learned Public Prosecutor seriously opposed this bail application. The public prosecutor submitted that, a statement of the victim was recorded under Section 164 Cr.P.C. The public prosecutor submitted that, she reiterated her** B.A. NO.5230 OF 2020 4 **allegations in the statement recorded under Section 164 Cr.P.C also. The public prosecutor submitted that, the custodial interrogation of the petitioner is necessary in this case.** **7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. Admittedly, the petitioner and the victim are aged 29 and 28 respectively. The alleged incident happened in February 2019, December 2019 and March 2020. The complaint was filed on 5.8.2020. It is an admitted fact that, the petitioner committed sexual intercourse with the victim at his house on 10.2.2019. Whether there is consent for this sexual intercourse from the part of the victim is a question to be considered. I am not in a position to decide the same while considering this bail application. It is a matter to be investigated by the investigating officer. Considering the entire facts and circumstances of this case, I think, this bail application can be allowed. I am directing the petitioner to surrender before the investigating** B.A. NO.5230 OF 2020 5 **officer and co-operate with the investigation.** **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 COVID19 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.** **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** B.A. NO.5230 OF 2020 6 **above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:** **1. The petitioner shall appear** **before the Investigating Officer within ten days from today and shall undergo interrogation;** **2. After interrogation, if the Investigating Officer proposes to arrest the petitioner, he 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;** **3. 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,** B.A. NO.5230 OF 2020 7 **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. The petitioner shall not leave** **India without permission of the** ## **Court;** **5. 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;** ## **6. 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;** **7. If any of the above conditions** B.A. NO.5230 OF 2020 8 **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/-** **pkk** **P.V.KUNHIKRISHNAN JUDGE**