Nitheesh V.K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942** ## **Bail Appl..No.1827 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRMC 433/2020 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **CRIME NO.137/2020 OF NEDUMBASSERY POLICE STATION, ERNAKULAM** ## **PETITIONER/S:** **NITHEESH V.K., AGED 32 YEARS S/O.RAJU, KALARIKAL HOUSE, MAIKAD, THURUTHISSERY, ERNAKULAM DISTRICT, PIN-683572** **BY ADVS. SRI.C.D.JOHNY SRI.LIFFY P. FRANCIS** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031** ## **OTHER PRESENT:** **SMT.SREEJA.V, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 1827 of 2020 2 ## **P.V.KUNHIKRISHNAN, J. ================== B.A.No. 1827 of 2020 ================== Dated this the 15[th] day of September, 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. 137/2020 of Nedubassery Police Station, Ernakulam District. The above case is registered against the petitioner alleging offences punishable under Sections 376 (2)(n), 370 and 506 of the Indian Penal Code (IPC). 3. The prosecution case is that, the petitioner committed rape on the victim on 28.10.2019 at 7.00 p.m., from the house of the petitioner. It is the case of the victim that, after that incident, showing some nude photos of the victim the petitioner threatened her and B.A.No. 1827 of 2020 3 committed rape on several occasions. 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 32 years and the victim is aged 36 years. Both of them are married. The learned counsel for the petitioner submitted that, even if the entire allegations are accepted. The offence under Section 376 of IPC 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, the custodial interrogation of the petitioner is necessary for completing the investigation. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. Admittedly, the petitioner and the victim are major. Both of them are married. The petitioner is aged 32 years and B.A.No. 1827 of 2020 4 the victim is aged 36 years. The allegation is that, the petitioner was working in SBI loan section. The defacto complainant met the petitioner in connection with availing a loan. Thereafter, the petitioner and the defacto complainant became friends. They used to contact over phone. The petitioner invited the defacto complainant to his house. It is the case of the prosecution that, after giving some juice by the petitioner to the victim, the victim became semi conscious and then the petitioner committed rape on the victim. Subsequently, about six times the petitioner committed rape on the victim at different places threatening that the nude photos of the victim will be circulated in social media. The case of the defacto complainant is that, once when the petitioner contacted her over phone, the husband saw the same and questioned it. Then she told the entire incident to her husband. Thereafter, the petitioner met a lawyer. In consultation with lawyer, the present complaint is filed. The First Information Statement in this case was recorded B.A.No. 1827 of 2020 5 on 18.02.2020. The Sessions Court dismissed the bail application on 29.02.2020. This bail application was filed on 05.03.2020. There is no interim order restraining the police in arresting the petitioner. The proviso under Section 438 of Cr.P.C. says that, if there is no interim order restraining arrest, the police can arrest an accused even if the bail application under Section 438 of Cr.P.C. is pending before a Court of law. The question in this case is whether there is consent from the defacto complainant for sexual intercourse. This is a matter to be investigated by the Investigating Officer. I do not want to make any observations about the merit of the case. 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 B.A.No. 1827 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 appear before the Investigating Officer within ten days from today and shall undergo interrogation;_ B.A.No. 1827 of 2020 7 _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, 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_ B.A.No. 1827 of 2020 8 _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. The petitioner shall appear before the investigating officer on all Mondays and Fridays at 10.a.m. till final report is filed in Crime. No. 137 of 2020._ 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