Rahul C B v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942** **Bail Appl..No.4857 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRMC 1440/2020 DATED 24-07-2020 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **CRIME NO.550/2020 OF ELAMAKKARA POLICE STATION, ERNAKULAM** ## **PETITIONER/S:** **RAHUL C B AGED 32 YEARS S/O BABU, KAMMAPAMTHODETH HOUSE, SDPY ROAD, PALLURUTHY ERNAKULAM - 682006** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921) SMT.V.A.HARITHA SRI.LAIJU CHACKO** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM - 682031** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 4857 of 2020 2 ## **P.V.KUNHIKRISHNAN, J. ================== B.A.No. 4857 of 2020 ================== Dated this the 17[th] day of August, 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. 550 of 2020 of Elamakkara Police Station, Ernakulam District. The above case is registered against the petitioner alleging offences punishable under Sections 417 and Section 376 (2) (n) of the Indian Penal Code (IPC). 3. The prosecution case is that, the petitioner committed rape on the victim on 29.04.2018 at Pooja Apartment, Kaloor Kara, Elamkulam and thereafter several times between June 2018 to 26.12.2019 after B.A.No. 4857 of 2020 3 giving her false promise of marriage and further procured gold ornaments, laptop and cash of Rs. 6 lakhs from her. The prosecution case is that the petitioner withdrew from the marriage and hence, the present complaint is filed by the victim. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that, the victim is aged 30 years and the accused is aged 32 years. The learned counsel submitted that, a perusal of FI statement, will show that the alleged rape committed by the petitioner was on several occasions from the house of the victim. The counsel also submitted that, there was a close relationship between the petitioner and the accused. The learned counsel also submitted that, the 1[st] alleged rape was on 29.04.2018 and the last incident was on 26.12.2019. The learned counsel also submitted that the FI statement was given only on 11.07.2020. The counsel submitted that from B.A.No. 4857 of 2020 4 these facts, it is clear that even if there is sexual intercourse between the petitioner and the victim that is with the consent of the victim. The learned counsel for the petitioner also submitted that, he is ready to abide any conditions, if this Court grants him bail. 6. The learned Public Prosecutor seriously opposed the bail application. The learned Public Prosecutor submitted that, the petitioner was having some illness to her knee. She underwent a knee transplantation operation also. The learned Public Prosecutor submitted that the allegation is that the petitioner forcefully committed rape on the victim. The learned Public Prosecutor submitted that the petitioner is not entitled orders under Section 438 of Cr.P.C. 7. The admitted prosecution case is that, the petitioner committed rape on the victim promising that he will marry her. 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**_ B.A.No. 4857 of 2020 5 _**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 under Section 376 of the IPC in all circumstance. I do not want to make any observations on merit of the case. I do not want to make any observations to the effect that the above decisions is applicable to the facts of this case. It is an admitted fact that the petitioner is aged 32 years and the victim is aged 30 years. It is an admitted fact that, the sexual intercourse happened from the house of the victim and at different places. It is also an admitted fact that the petitioner and the victim were close friends. It is also an admitted fact that the 1[st] alleged rape was on 29.04.2018 and the last alleged rape was on 26.12.2019 and thereafter, a first information statement was filed on 11.07.2020. Again I make it clear that, I do not want make any observations on the merit of the B.A.No. 4857 of 2020 6 case. Considering the entire facts and circumstances of this case, I think the petitioner can released on bail under Section 438 of the Cr.P.C. 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 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 B.A.No. 4857 of 2020 7 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 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_ B.A.No. 4857 of 2020 8 _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 social distancing in the wake of Covid 19 pandemic._ _7. The petitioner shall furnished the correct_ _address, phone number to the Investigating Officer._ _8. The Petitioner shall appear before the_ B.A.No. 4857 of 2020 9 _Investigating Officer on all Mondays and Fridays at 10.00 a.m. till the final report is filed._ 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