High Court of KeralaSingle Judge2020-09-18Bail granted to the petitioner under Section 43...

Sarath v. State of Kerala

Case / Petition Number:BA NO.5124 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-09-18
Court Decision / Holding: The bail application is allowed on stringent conditions. The petitioner shall appear before the Investigating Officer within ten days for interrogation. After interrogation, if the IO proposes arrest, the petitioner shall be released on bail on bond of Rs. 50,000 with two solvent sureties each for the like sum. The petitioner shall appear as required, shall not leave India without court permission, shall not commit a similar offence, and shall appear before the IO every Monday at 10 a.m. until the final report. The petitioner shall abide by COVID-19 social distancing guidelines, and violation of any condition may lead to cancellation of bail.
Final Disposition: Bail granted to the petitioner under Section 438 Cr.P.C. with stringent conditions.

Parties to the Case

Appellants / Petitioners

Sarath

Respondents

State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Sri. P. Anoop (Mulavana)

Counsels for Respondents

• Sri. Renjith T.R., PP

Case Synopsis & Summary

This High Court of Kerala bail application under section 438 CrPC concerns Sarath, accused in Pallickal Police Station Crime No. 142/2020, Thiruvananthapuram district, charged with offences under sections 376 and 506(1) IPC. The petitioner, aged 30, allegedly engaged in an intimate relationship with the victim, who was 22, and, following an engagement, allegedly committed rape at a home stay in Kovalam. The prosecution relies on the FIR and victim statements that the assault occurred after the engagement and amid a promise to marry. The defence contends that, even if the allegations are true, no offence under section 376 IPC would arise where rape occurs after a promise to marry, citing Dr. Dhruvaram Muralidhar Sonar v. State of Maharashtra and Pramod Suryabhan Pawar v. State of Maharashtra, which held withdrawal from a promise to marry can negate the offence. The accused is willing to comply with stringent bail conditions. The Public Prosecutor opposed bail, arguing custodial interrogation is necessary. After hearing, the court reiterates the well-settled principle that bail is the rule and jail is the exception, and grants bail with stringent conditions, while noting COVID-19 guidelines for prison distancing. The order mandates cooperation with investigation, appearance before the IO, bond, no leaving the country, non-commission of similar offences, weekly appearances, and strict adherence to social distancing guidelines, with possible cancellation for violations.

Provisions of Law Cited

Cr.P.C. Section 438IPC Sections 376, 506(1)

Legal Doctrines & Maxims

Bail is the rule and jail is the exception
The basic jurisprudence relating to bail remains the same: the grant of bail is the rule and refusal is the exception to ensure fair trial.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant’s counsel submitted that, even if the allegations are accepted, no offence under Section 376 IPC would be made out where rape occurs after a promise to marry, citing Dr. Dhruvaram Muralidhar Sonar v. State of Maharashtra (2019(1) KHC 403) and Pramod Suryabhan Pawar v. State of Maharashtra (2019 KHC 6829). The court should grant bail given the accused’s age (30) and the victim’s age (22), their familial relation, and the accused’s willingness to comply with conditions; the injury to fair trial if detained is avoided by stringent terms. The counsel urged that the bail order respect the COVID-19 milieu and ensure the accused’s right to a fair trial.

Contentions of Respondents

The State’s counsel argued that custodial interrogation is necessary, emphasizing the seriousness of the offences (376 and 506(1) IPC) and the need to uncover facts, especially given the engagement/context between the parties. They urged the court to consider the victim’s dignity and the gravity of the crime, and to ensure that investigation proceeds unhindered, though counsel acknowledged the pandemic context in deciding on appropriate conditions as a supplementary safeguard.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Dr. Dhruvaram Muralidhar Sonar v. State of Maharashtra	2019(1) KHC 403	Positive	Cited to support the proposition that rape after a promise to marry and withdrawal from that promise can negate the offence under Section 376 IPC, influencing the bail reasoning.
Pramod Suryabhan Pawar v. State of Maharashtra	2019 KHC 6829	Positive	Similarly cited to reinforce the view that a promise to marry followed by withdrawal can undermine the 376 IPC charge.
Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020)	Suo Motu Writ Petition(C) No.1 of 2020	Mentioned Only	Cited to justify social distancing and related directives for prisoners, not as a direct legal principle on bail.
Chidambaram P. v. Directorate of Enforcement	2019 (16) SCALE 870	Positive	Used to reinforce the general bail doctrine that bail is the rule and refusal is the exception to safeguard fair trial.

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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 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942** ## **Bail Appl..No.5124 OF 2020** **CRIME NO.142/2020 OF PALLICKAL POLICE STATION, THIRUVANANTHAPURAM DISTRICT.** ## **PETITIONER/ACCUSED:** **SARATH AGED 30 YEARS, S/O.SIVANKUTTY, SIVASAILAM, MAMOM, ATTINGAL, THIRUVANANTHAPURAM DISTRICT. PIN-695104** **BY ADV. SRI.P.ANOOP (MULAVANA)** ## **RESPONDENT:** ## **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA PIN-682031** ## **BY SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.NO.5124 OF 2020 2 ## **O R D E R** **Dated this the 18th day of September 2020** ... **This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.** **2. The petitioner is the accused in Crime No. 142 of 2020 of Pallickal Police Station, Thiruvananthapuram District. The above case is registered against the petitioner alleging offences punishable under Sections 376, 506(i) of the Indian Penal Code (IPC).** **3. The prosecution case is that, on 18.8.2019, the accused and the victim got engaged before Navaikulam Sankara Narayana Temple and thereafter on 31.8.2019, the petitioner committed forceful rape on the victim at a home stay at Kovalam. Hence, it is alleged that, the petitioner committed the said offence.** **4. Heard the learned counsel for the** **petitioner and the learned public prosecutor.** B.A.NO.5124 OF 2020 3 **5. The learned counsel for the petitioner submitted that, the allegation as per F.I.statement of the victim is that, the petitioner committed rape on the victim with a promise to marry her. The counsel submitted that, even if the entire allegations are accepted, no offence under Section 376 IPC is made out. The counsel submitted that, the Apex Court in Dr.Dhruvaram Muralidhar Sonar v. The State of Maharashtra [2019(1) KHC 403] and Pramod Suryabhan Pawar v. The State of Maharashtra [2019 KHC 6829] considered this point and held that if there is a promise to marry and thereafter committed rape and subsequently withdrawn from the promise to marry, the offence under Section 376 IPC will not be made out. The counsel submitted that, the petitioner is aged 30 years and the victim is aged 22 years. The counsel submitted that, the petitioner is ready to abide any conditions, if this Court is granting bail to him.** **6. The learned Public Prosecutor opposed this bail application. The public prosecutor submitted** B.A.NO.5124 OF 2020 4 **that, the custodial interrogation of the petitioner is necessary in this case.** **7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. It is an admitted fact that, the petitioner is aged 30 years and the victim is aged 22 years. It is an admitted fact that, the marriage** **between the petitioner and the victim girl was fixed and thereafter the alleged rape was committed. It is also an admitted fact that, the petitioner and the victim girl are relatives. The prosecution case is that, the petitioner took the victim girl to a home stay at Kovalam and stayed there. While staying in the home stay, the petitioner committed rape on the victim. That also after the engagement ceremony of the petitioner and the victim girl. I do not want to make any observation about the merit of this case. Considering the entire facts and circumstances of this case, this bail application is allowed on** **stringent conditions.** B.A.NO.5124 OF 2020 5 **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 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** B.A.NO.5124 OF 2020 6 ## **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 indirectly make any** B.A.NO.5124 OF 2020 7 **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 appear before the investigating officer on all Mondays' at 10 a.m. till the final report in Crime No. 142 of 2020 of Pallickal Police Station,** **Thiruvananthapurm District is filed;** **7. The petitioner shall strictly abide by the various guidelines** B.A.NO.5124 OF 2020 8 **issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic;** **8. 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** **pkk** **JUDGE**