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High Court of KeralaSingle JudgeBail granted

NISHAJ v. STATE OF KERALA

Case / Petition Number:B.A.No.7637 of 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2020-11-27
Court Decision / Holding
Bail application allowed with stringent conditions: (1) petitioner to appear before the Investigating Officer within ten days for interrogation; (2) after interrogation, if arrest is contemplated, petitioner to be released on bail on a bond of Rs. 50,000 with two solvent sureties; (3) petitioner to appear for interrogation as required and not to induce or threaten witnesses; (4) petitioner not to leave India without court permission; (5) petitioner not to commit any offence similar to the alleged one; (6) petitioner to comply with social distancing guidelines in prisons; (7) court retains power to cancel bail if conditions are violated.
Final Disposition
Bail granted

Parties to the Case

Appellants / Petitioners

  • NISHAJ

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. Shri Sunil Kumar A.G

Counsels for Respondents

  • • SRI.RENJITH.T.R., PP

Case Synopsis & Summary

This bail application under section 438 CrPC concerns Crime No.24/2020 of Nilambur Police Station, in which the petitioner Nis haj (NISHAJ) is accused of offences under sections 450, 376(1) and 506 IPC. The prosecution alleges that on 10.01.2020 at about 12:30 a.m. the petitioner trespassed into the dwelling of the defacto complainant and her child, committed rape, and threatened her with dire consequences if the incident was disclosed. The petitioner contends that no such incident occurred and points to an affidavit filed by the defacto complainant stating she has no grievance against him; Annexure-A1 is claimed to be a true copy of that notarized affidavit. The prosecution reported a signed statement from the defacto complainant dated 25.11.2020 and indicates that the final report has been filed; the case has been committed to the Sessions Court. The court acknowledges that rape under section 376 IPC cannot be compounded, yet notes that the investigation is over and the victim has stated she has no grievance. Relying on Supreme Court precedents and COVID-19 prison guidelines, the court allows bail under stringent conditions: the petitioner must appear for interrogation within ten days, furnish a bond of Rs 50,000 with two solvent sureties, refrain from leaving the country, and observe social distancing norms, among other conditions. The order emphasizes the presumption of innocence and balanced consideration of trial rights with public safety.

Provisions of Law Cited

Section 450 IPCSection 376(1) IPCSection 506 IPCSection 438 CrPCSection 482 CrPC

Legal Doctrines & Maxims

  • Bail is the rule and jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submitted that no incident occurred; the defacto complainant filed an affidavit stating she has no grievance against him, and Annexure-A1 is claimed to be a true notarized copy of that affidavit. He expressed willingness to comply with any conditions for bail and emphasized that the investigation is over with the final report filed; he urged the Court to exercise caution in view of COVID-19 guidelines and the principle that bail is the rule and jail is the exception.

Contentions of Respondents

The State opposed bail, noting that the case involves serious charges under IPC. It was highlighted that a signed statement from the defacto complainant was recorded on 25.11.2020, the final report has been filed, and the committal to Sessions has taken place. While acknowledging the seriousness, the State relied on the victim’s stated grievance and the completed investigation to contend that bail should not be granted lightly; however, it did not oppose the final bail order under appropriate conditions.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Re: Contagion of COVID19 Virus In Prisons caseSuo Motu Writ Petition(C) No.1 of 2020Mentioned OnlyCited to justify social distancing and related guidelines in prisons during the COVID-19 pandemic.
W.P(C)No.9400 of 2020—Mentioned OnlyFull Bench directions on COVID-19 measures; referenced as context for prison-related norms.
Chidambaram. P v Directorate of Enforcement2019 (16) SCALE 870PositiveAffirms bail as the rule and jail as the exception, guiding the court’s approach to bail in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** ## **Bail Appl..No.7637 OF 2020** **CRIME NO.24/2020 OF Nilambur Police Station , Malappuram** ## **PETITIONER/ACCUSED:** **NISHAJ AGED 31 YEARS SON OF HUSSAIN, THONDIPPURAM HOUSE, VALLAPUZHA P.P., NILAMBUR 679330** **BY ADV. SHRI.SUNIL KUMAR A.G** ## **RESPONDENT/:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 7637 OF 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- B.A.No.7637 of 2020 ------------------------------- Dated this the 27[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.24 of 2020 of Nilambur Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 450, 376 (1) and 506 of IPC. 3. The prosecution case is that on 10.01.2020 at about 12.30 a.m., the petitioner trespassed into the house of the defacto complainant where she and her B.A.No. 7637 OF 2020 3 child are residing, committed rape on her and threatened with dire consequence if divulged the incident to anyone. 4. Heard the counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that no such incident happened. The counsel submitted that the defacto complainant also filed an affidavit before this Court saying that she has no grievance against the petitioner. The counsel submitted that Annexure-A1 is the true copy of the notarized affidavit of the defacto complainant. The counsel submitted that the petitioner is ready to abide any conditions if this Court grant him bail. 6. The Public Prosecutor opposed the bail application. When this bail application came up for consideration on an earlier date, this Court directed the Public Prosecutor to get instructions based on the alleged affidavit given by the defacto complainant. The B.A.No. 7637 OF 2020 4 Public Prosecutor after getting instructions submitted that a signed statement is recorded from the defacto complainant on 25.11.2020 and that signed statement is made available to this Court. The Public Prosecutor also submitted that final report is already filed in this case. Now the committal court already committed the case to Sessions Court. 7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. I perused the signed statement dated 25.11.2020 of the defacto complainant in which it is stated that she has no grievance against the petitioner. It is true that the offence under Section 376 IPC cannot be compounded. Criminal proceedings initiated under Section 376 IPC can't be quashed even under Section 482 Cr.P.C in the light of several judgments of the Apex Court. But in this case the investigation is over and final report is filed. The victim also stated that she has no grievance against the petitioner. In such circumstances, this B.A.No. 7637 OF 2020 5 Court cannot ignore such a statement given by the victim while considering this bail application. I don't want to make any observation on the merit of the case. Considering the entire facts and circumstances 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 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** B.A.No. 7637 OF 2020 6 **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 propose 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 B.A.No. 7637 OF 2020 7 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 them from disclosing such facts to the Court or to any police officer. 4. Petitioner shall not leave India without permission of the Court. 5. 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 are B.A.No. 7637 OF 2020 8 violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. ## **P.V.KUNHIKRISHNAN, JUDGE** al/-