Sarathkumar.K.S. v. State of Kerala represented by Public Prosecutor; Station House Officer, Chombala Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942** ## **Bail Appl..No.7251 OF 2020** **CRIME NO./0 OF CHOMBALA POLICE STATION , Kozhikode** ## **PETITIONER/ACCUSED:** |**1**|**SARATHKUMAR.K.S.**| |---|---| ||**AGED 28 YEARS**| ||**KARAKKAT HOUSE, AMMAMKULAM,**| ||**P.O.PADAPPENGAD, TALIPARAMBA TALUK,**| ||**KANNUR DISTRICT**| ||**670001**| |**2**|**SIVANANDAN.C.D.**| ||**AGED 65 YEARS**| ||**KARAKKAT HOUSE, AMMAMKULAM**| ||**P.O.PADAPPENGAD, TALIPARAMBA TALUK,**| ||**KANNUR DISTRICT**| ||**BY ADV. SRI.M.SASINDRAN**| ## **RESPONDENT/S:** |**1**|**STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR**| |---|---| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM**| ||**682031**| |**2**|**STATION HOUSE OFFICER**| ||**CHOMBALA POLICE STATION**| ||**VATAKARA TALUK,**| ||**KOZHIKODE DISTRICT**| ||**673308**| ## **OTHER PRESENT:** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 7251 OF 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- B.A.No.7251 of 2020 ------------------------------Dated this the 10[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 first petitioner is an accused in Crime No.525/2020 of Chombala Police Station. The above case is registered against the first petitioner alleging offences punishable under Sections 376 (2) (a) of the IPC. The Public Prosecutor submitted that the second petitioner is not an accused. 3. The case is registered based on a complaint filed by the victim in this case on 24.10.2020. It is stated in the complaint that while the victim was working at Ernakulam, she became friend of the first B.A.No. 7251 OF 2020 3 petitioner over phone. Subsequently, in April, 2018, the first petitioner and the victim started from Ernakulam Railway station in a train and they get down at Coimbatore. Thereafter, they proceeded to Mysore. It is alleged that they stayed together. The specific case of the victim is that the petitioner committed rape on her promising that he will marry her. Subsequently, on 9.10.2020 the victim came to know that the first petitioner already married another girl. Hence, the present complaint is filed. 4. Heard the counsel for the petitioners and the learned Public Prosecutor. 5. The counsel for the petitioners submitted that even if the entire allegations are accepted, no offence under Section 376 is made out. The counsel submitted that the allegation against the first petitioner is that there is a promise to marry and based on the promise, the victim gave consent for sexual intercourse. Subsequently, the first petitioner withdrew from the ## B.A.No. 7251 OF 2020 4 promise. The counsel relied on the judgment of the Apex Court in _**Dr.Dhruvaram Muralidhar Sonar**_ _**V. State of Maharashtra (2019 (1) KHC 403)**_ **and** _**Pramod Suryabhan Pawar V. State of Maharashtra (2019 KHC 6829).**_ The counsel submitted that in the light of the above dictum laid down by the Supreme Court, the offence is not made out. The counsel submitted that the first petitioner is ready to abide any conditions if this Court grant him bail. 6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the allegations against the first petitioner are serious and custodial interrogation is necessary. 7. The Public Prosecutor made available the F.I. statement given by the victim. A reading of the F.I. Statement it is clear that the first petitioner and the victim became friends through telephone. Subsequently, the victim accompanied the first B.A.No. 7251 OF 2020 5 petitioner to Coimbatore and thereafter to Mysore and they stayed together and there was sexual intercourse on a promise from the side of the first petitioner that he will marry her. Subsequently, in 2020, the victim came to know that the first petitioner married another girl. Hence the present complaint is filed. I don't want to make any observation on the merit of the case. Admittedly, the first petitioner is aged 28 and the victim is aged 26. Considering the entire facts and circumstances and I think, the Bail Application of the first petitioner is allowed on stringent conditions. The Public Prosecutor submitted that the second petitioner is not an accused is recorded. 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 ## B.A.No. 7251 OF 2020 6 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 of the first petitioner is allowed with the following directions: 1. The first petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. B.A.No. 7251 OF 2020 7 2. After interrogation, if the Investigating Officer propose to arrest the first 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 first 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 first Petitioner shall not leave India without permission of the Court. 5. The first petitioner shall not commit any offence similar to the offence of which he is accused, or suspected, of the B.A.No. 7251 OF 2020 8 commission of which he is suspected. 6. The first 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 first petitioner shall appear before the investigating officer on all Mondays at 10 a.m. for a period of two months. 8. If any of the above conditions are violated by the first 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/-