Lenin S Lenin S v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942** ## **Bail Appl..No.7196 OF 2020** **CRIME NO.723/2020 OF MEPPADI POLICE STATION, WAYANAD** ## **PETITIONER/S:** **LENIN.S LENIN.S., AGED 28 YEARS, S/O. SUDARSAN, LENIN NIVAS, CHOORALMALA, VELLAMALA P.O., VELLARIMALA VILLAGE, WAYANAD-673577** **BY ADV. SRI.M.R.SARIN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM - 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.E.C.BINEESH, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 7196 of 2020 2 ## **P.V.KUNHIKRISHNAN, J. ===================== B.A.No. 7196 of 2020 ===================== Dated this the 9[th] day of November, 2020** ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioner is the accused in crime No. 723/2020 of Meppadi Police Station, Wayanad District. The above case is registered against the petitioner alleging offences punishable under Sections 376 and 420 of the Indian Penal Code (IPC). 3. The prosecution case is that, during the period from 24.12.2018 to 27.12.2019, the de facto complainant and the petitioner became friends through facebook. On believing the words of the petitioner that he would marry the de facto complainant, the de facto complainant came B.A.No. 7196 of 2020 3 to Kalpetta on two or three occasions and stayed in a home stay. From the home stay, it is alleged that, the petitioner committed sexual offences against the defacto complainant with a promise that he will marry the defacto complainant. Subsequently, it is alleged that the petitioner withdrew from the marriage and also misappropriated gold and money of the de facto complainant. 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 28 years and the victim is aged 30 years. The learned counsel for the petitioner submitted that, even if the entire allegations are accepted, the offence under Section 376 is not made out. The learned counsel for the petitioner also submitted that, the petitioner is ready to abide any conditions, if this Court grant him bail. 6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor submitted that, B.A.No. 7196 of 2020 4 the allegation against the petitioner is very serious. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. Admittedly, the petitioner and the de facto complainant are major. The petitioner is aged 28 years and the victim is aged 30 years. Admitted case of the de facto complainant is that, she is residing at Trivandrum. She met the petitioner through facebook. Thereafter, she came alone to Kalpetta and stayed in a home stay. From the home stay, it is alleged that, the petitioner committed rape on her promise that he will marry her. Subsequently, the petitioner withdrew from the same. It is now settled as per the judgment of the Apex Court in **Dhruvaram Murlidhar Sonar (Dr) Vs. State of Maharashtra and others (2019 (1) KHC 403)** and **Pramod Suryabhan Pawar Vs. State of Maharashtra and another (2019 KHC 6829)** that in all cases in which there is promise to marry and committing sexual intercourse and thereafter withdrawing from the promise will not attract the offence B.A.No. 7196 of 2020 5 under Section 376 of the IPC. I do not want to make any observations about the merit of the case. The learned counsel submitted that, there is some money transaction between the petitioner and de facto complainant. He produced certain evidence to show that, the money is transferred actually by the petitioner to the de facto complainant. This is a matter to be investigated by the Investigating Officer. Considering the entire facts and circumstance of the case, 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 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 B.A.No. 7196 of 2020 6 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 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_ B.A.No. 7196 of 2020 7 _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, 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_ B.A.No. 7196 of 2020 8 _social distancing in the wake of Covid 19 pandemic._ _7. The petitioner shall appear before the investigating officer on all Mondays at 10.a.m. for a period of three months._ 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