Kailas Nadh v. State of Kerala

``` 2025:KER:30777 ``` ``` 1 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 4491 OF 2025`** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` WEDNESDAY, THE 9[TH] DAY OF APRIL 2025 / 19TH CHAITHRA, 1947 ``` ## **`BAIL APPL. NO. 4491 OF 2025`** ``` CRIME NO.173/2025 OF Kurathikadu Police Station, Alappuzha ``` ## **`PETITIONER/ACCUSED:`** ``` KAILAS NADH AGED 21 YEARS S/O SANTHOSH, THENGUMPPALITHARAYIL, ALLA PROVIDENCE, ENGINEERING COLLEGE, CHENGANOOR, ALAPPUZHA, KERALA, PIN - 689121 ``` ``` BY ADVS. P.THOMAS GEEVERGHESE RUBAN JOE TONIYO ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP-HRITHWIK C S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2025:KER:30777 ``` ``` BAIL APPL. NO. 4491 OF 2025 ``` ``` 2 ``` **==> picture [57 x 57] intentionally omitted <==** ## **P.V.KUNHIKRISHNAN, J. -------------------------------B.A. No.4491 of 2025 ---------------------------------------------Dated this the 09[th] day of April, 2025** ## **`ORDER`** This Bail Application is filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita. 2. Petitioner is the accused in Crime No.173/2025 of Kurathikadu Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 366, 354B, 506 and 376(2)(n) of the Indian Penal Code. 3. The prosecution case is that, the accused with the intention of committing rape on the complainant, seduced her by promising marriage. It is alleged that in August 2023, the accused abducted the complainant on his Dio scooter from a bus stop in Kattaanam Junction and took her to the house of the accused in Chengannur by 11am, undressed her and raped her. On another day in the same week, the same event had occurred in which the accused allegedly abducted the ``` 2025:KER:30777 ``` ``` 3 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 4491 OF 2025`** complainant in the morning, took her to his house at Chengannur and raped her. It is further alleged that in August 2024 a similar incident occurred where the accused abducted the complainant and took her to his friend’s house in Chengannur, undressed her and raped her. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. This Court directed the Public Prosecutor to hand-over a copy of the First Information Statement. This Court perused the First Information Statement. Admittedly the victim in this case is major and the petitioner is aged 21. A perusal of the First Information Statement would show that the victim went along with the petitioner to the house of the petitioner and there was sexual intercourse on three occasions. According to the victim she gave consent because there was a promise to marry. But the petitioner withdrew from that promise. The Apex Court in **Mahesh Damu Khare v. The State of Maharashtra and Another** [2024 INSC 897] considered the same issue. The relevant portion of the above judgment is extracted hereunder: ``` 2025:KER:30777 ``` ``` BAIL APPL. NO. 4491 OF 2025 ``` ``` 4 ``` **==> picture [57 x 57] intentionally omitted <==** “22. In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.” 6. The Apex Court in **Manish Yadav v. State of** **Utter Pradesh & Another** [2025 SCC OnLine SC 363] again considered the same issue. The relevant portion of the above judgment is extracted hereunder: ``` 2025:KER:30777 ``` ``` BAIL APPL. NO. 4491 OF 2025 ``` ``` 5 ``` **==> picture [57 x 57] intentionally omitted <==** “18. Applying the above principle to the case at hand, it is clearly discernible that in the present case, the complainant had agreed to indulge in intimate relations with the appellant on the accord of her own desires and not on the basis of any false promise of marriage made by the appellant. Therefore, while the present case may involve a breach of promise, it does not constitute a case of an inherently false promise to marry. Based on the circumstances, it cannot be concluded that the appellant obtained the complainant's consent to engage in a physical relationship under the pretext of a false promise of marriage. 22. In view of the above discussion, we are of the opinion that the present case appears to be one where a consensual physical relationship between two adults has turned sour due to certain intervening events. Hence, allowing the prosecution of the appellant for the offences mentioned above would tantamount to sheer abuse of the process of law and nothing else.” Keeping in mind the above principles laid down by the Apex Court, this Court perused the prosecution case. I am of the considered opinion that the petitioner can be released on bail after imposing stringent conditions. Moreover the petitioner is in custody from 20.03.2025. ``` 2025:KER:30777 ``` ``` 6 ``` **==> picture [57 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 4491 OF 2025`** 7. 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. 8. Moreover, in **Jalaluddin Khan v. Union of India [2024 KHC 6431]** , the Hon'ble Supreme Court observed that: “21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case could not be properly appreciated. When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. "Bail is the rule and jail is an exception" is a ``` 2025:KER:30777 ``` ``` BAIL APPL. NO. 4491 OF 2025 ``` ``` 7 ``` **==> picture [57 x 57] intentionally omitted <==** settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modifcation that the bail can be granted if the conditions in the statute are satisfed. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Art.21 of our Constitution.” (underline supplied) ## 9. In **Manish Sisodia v. Directorate of** ## **Enforcement [2024 KHC 6426]** , also the Hon'ble Supreme Court observed that: “53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well - settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non - grant of bail even in straight forward open and shut cases, this Court ``` 8 ``` **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:30777` ## **`BAIL APPL. NO. 4491 OF 2025`** is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".” 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. 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 ``` 9 ``` **==> picture [57 x 57] intentionally omitted <==** ## `2025:KER:30777` ## **`BAIL APPL. NO. 4491 OF 2025`** person acquainted with the facts of the case so as to dissuade him/her 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 observations and findings in this order is only for the purpose of deciding this bail application. The principle laid down by this Court in **Anzar Azeez v. State of Kerala** [2025 SCC OnLine KER 1260] is applicable in this case also. 6. 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 ``` 2025:KER:30777 ``` ``` BAIL APPL. NO. 4491 OF 2025 ``` ``` 10 ``` **==> picture [57 x 57] intentionally omitted <==** 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** jv