Rahees C.K. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ## **`BAIL APPL. NO. 4178 OF 2024`** ``` CRIME NO.405/2024 OF PETTA POLICE STATION, THIRUVANANTHAPURAM AGAINST THE ORDER DATED 06.05.2024 IN Crl.MP NO.998 OF 2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN),THIRUVANANTHAPURAM PETITIONER/ACCUSED: ``` ``` RAHEES C.K. AGED 27 YEARS S/O YUSUF, CHELAKKADAN VEETIL, MATTI, NEAR NILAMBUR RAILWAY STATION, NILAMBUR VILLAGE, NILAMBUR TALUK, MALAPPURAM, PIN - 679330 ``` ``` BY ADV SRI.MITHUN P. ``` ## **`RESPONDENTS/COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`*2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX`** ``` *(XXX IS IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 09.07.2024 IN CRL.M.A.NO.03/2024) ``` ``` BY ADV ``` ``` R1 BY SR. PP SRI.C.S.HRITHWIK R2 BY SMT.HARISHMA P. THAMPI ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.4178 of 2024 ``` ``` 2 ``` ## **ORDER** ## **Dated this the 18[th] day of July, 2024** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) by the sole accused in Crime No.405 of 2024 of the Petta Police Station, Thiruvananthapuram, which is registered against him for allegedly committing the offences punishable under Sections 354, 354A(1)(i), 376(3) of the Indian Penal Code, 1860 and Section 4(2) read with Section 3(a)(b), Section 8 read with Section 7, Section 10 read with Section 9(l), Section 12 read with Section 11(iv) of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). The petitioner was arrested and remanded to judicial custody on 18.04.2024. ``` B.A.No.4178 of 2024 ``` ``` 3 ``` 2. The crux of the prosecution case is that : the accused got acquainted with the victim, a 17 year old girl, and their acquaintance developed into a relationship and they fell in love with each other. Subsequently the accused committed sexual assault on the victim by inserting his finger into her vagina. Thereafter, he took her to a lodge near Lulu Mall and committed rape on her on the assurance that he would marry her when she attains the marriageable age. However, the accused resiled from his promise. Subsequently, the victim went missing and her parents lodged a complaint before the police. But, the victim did not complaint about the incident to the police on the bonafide expectation that the accused would marry her. Therefore, the accused completely stopped his relationship with the victim and she was compelled to lodge the present complaint. Thus, the accused has committed the above offences. ``` 4 ``` ``` B.A.No.4178 of 2024 ``` 3. Heard; Sri.Mithun Pavanan, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor and Smt.Harishma P Thampi, the learned counsel appearing for the 2[nd] respondent/the victim. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The Investigating Officer has deliberately implicated the petitioner in the crime. The petitioner and the victim had consensual sexual relationship since they had proposed to get married. The subject matter in dispute between the petitioner and the victim has been settled and the victim has clearly stated that she has no subsisting grievance against the petitioner. The victim’s statement in this regard has been recorded by the Investigating Officer. In any given case, the petitioner has been in judicial custody for the last three months, the investigation in the case is ``` B.A.No.4178 of 2024 ``` ``` 5 ``` complete, medical examinations have been completed and the final report has been laid. The petitioner is prepared to marry the victim immediately on his release from the custody and the victim attaining the age of 18. Therefore, the petitioner’s further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The investigating Officer has filed a bail objection report, interalia, contending that there are incriminating materials to substantiate that the petitioner has committed the offences of rape as well as penetrative sexual assault on the victim on several occasions. The medical evidence proves that the petitioner has committed the above offences. If the petitioner is released on bail, there is every likelihood of him intimidating the witnesses, and tampering with the evidences. Therefore, the application may be dismissed. Nonetheless, the learned Public Prosecutor ``` 6 ``` ``` B.A.No.4178 of 2024 ``` submitted that pursuant to the order dated 09.07.2024 passed by this Court, the the Investigating Officer has recorded the statement of the victim wherein she has stated that she proposes to get married to the petitioner on attaining the marriageable age. 6. The learned counsel for the 2[nd] respondent also stated that the subject matter in dispute between the 2[nd] respondent/the victim and the petitioner has been settled on the assurance made by the petitioner that he would get married to the 2[nd] respondent. She stated that the 2[nd] respondent had consensual relationship with the petitioner. The victim has no objection that the petitioner being enlarged on bail in view of the assurance made by the petitioner. 7. The prosecution allegation is that the petitioner had committed rape, penetrative sexual assault and outraged the modesty of the victim on the assurance that he would marry her. Prima facie, the ``` B.A.No.4178 of 2024 ``` ``` 7 ``` materials placed on record too establishes the petitioner’s involvement in the crime. Even though, the petitioner has contended that he and the victim were in love and the relationship was consensual, admittedly, the victim was 17 years of age at the time of the incident. Therefore, the petitioner cannot claim that there was consensual relationship between the parties. However, in view of the subsequent events, wherein the victim herself has stated that she had sexual relationship with the petitioner on the assurance made by him that he would get married to her and she has no objection in the petitioner being released on bail in view of his assurance that he would marry her and further that the petitioner has been in judicial custody for the last three months, the investigation in the case is practically complete and medical examinations have been conducted, I am of the view that the petitioner’s further detention is unnecessary. ``` B.A.No.4178 of 2024 ``` ``` 8 ``` 8. In **Dataram Singh v. State of U.P.** , [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is the rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 9. In **State of Kerala v. Raneef,** [(2011) 1 SCC 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 10. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held ``` B.A.No.4178 of 2024 ``` ``` 9 ``` that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India. 11. The principle that bail is the rule and jail is an exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied merely due to the sentiments of the society. 12. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner has been in judicial custody for the last 90 days, the investigation in the case is complete and the final report has been laid, I am of the firm view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent ``` B.A.No.4178 of 2024 ``` ``` 10 ``` conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No. 405/2024. (ii) The petitioner shall not directly or indirectly contact, make any inducement or threat to the victim or her witnesses or 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 ``` 11 ``` ## **`B.A.No.4178 of 2024`** Officer, or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) The petitioner shall not enter the Taluk where the victim and the witnesses are residing till the conclusion of the trial in Crime No.405/2024, other than for the purpose of reporting to the Investigating Officer; ## **`B.A.No.4178 of 2024`** ## **`12`** (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if to effect recoveries on the necessary, information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. ``` B.A.No.4178 of 2024 ``` ``` 13 ``` (ix) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- **C.S.DIAS JUDGE** NAB