High Court of KeralaSingle Judge2020-10-13Bail granted

Shiju v. State of Kerala

Case / Petition Number:B.A.No. 6305 of 2020

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-10-13
Court Decision / Holding: This Bail Application is allowed with stringent conditions: (1) the petitioner shall appear before the Investigating Officer within ten days and undergo interrogation; (2) after interrogation, if the IO proposes to arrest, the petitioner shall be released on bail on a bond of Rs. 50,000 with two solvent sureties; (3) the petitioner shall appear for interrogation as required and shall not threaten or induce witnesses; (4) the petitioner shall not leave India without court permission; (5) the petitioner shall not commit any offence similar to the one alleged; (6) the petitioner shall comply with state and central government social distancing guidelines; (7) non-compliance may result in cancellation of bail. The judge clarified he did not express a finding on merits and relied on established bail jurisprudence and Covid-19 related directions to grant bail.
Final Disposition: Bail granted

Parties to the Case

Appellants / Petitioners

Shiju

Respondents

State of Kerala represented by Public Prosecutor
R1: Public Prosecutor (State)

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Latheesh Sebastian

Counsels for Respondents

• Public Prosecutor
• Ajith Murali, PP

Case Synopsis & Summary

This is a bail application under section 438 CrPC by the accused Shiju in Crime No.1017/2020 registered at Kulathupuzha Police Station, Kollam, alleging offences under section 376 IPC. The High Court heard the matter by video conference and pronounced an order on 13 October 2020. The prosecution contends that the victim was coerced into sex with the promise of marriage and that the accused concealed an earlier marriage; the FI statement suggests that even after learning of the prior marriage, the couple continued the relationship and lived as husband and wife, with a child in the marriage. The petitioner argued that even if all allegations are true, no offence under section 376 IPC is made out since consent was obtained on the promise to marry, and the FI indicates ongoing domestic cohabitation. The court did not decide on merits but observed, from the FI, that consent was given due to the promise of marriage. It emphasized the general bail principle that bail is the rule and jail is the exception, and it relied on Supreme Court and Kerala decisions and Covid 19 related directions to justify cautious bail relief. The court ultimately granted bail on stringent conditions, balancing the need for investigation with individual rights and public health considerations, including social distancing and monitoring conditions to prevent misuse or evasion of the law.

Provisions of Law Cited

Section 438 of the Criminal Procedure CodeSection 376 of the Indian Penal Code

Legal Doctrines & Maxims

Bail is the rule and jail is the exception

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the petitioner contended that even if the entire allegations are accepted, no offence under section 376 IPC is made out. The claim that the defacto complainant consented due to a promise to marry is supported by the FI statement that the accused and the victim continued living together after knowledge of the prior marriage and even after a child was born. The defense stressed that consent resulting from a marriage promise does not by itself establish rape, and the case does not necessarily satisfy the essential elements of section 376 IPC. The applicant requested bail on stringent conditions, citing the rule that bail is the general rule and imprisonment is the exception, and noting the Covid 19 guidelines aimed at reducing prison populations.

Contentions of Respondents

The Public Prosecutor opposed bail, arguing that custodial interrogation is necessary for investigation. The prosecution pointed to the FI statement indicating a continuing sexual relationship despite knowledge of the accused’s prior marriage, which suggests the gravity of the offence and the need to unearth facts through custodial inquiry. The State contends that release on bail could interfere with the investigation and public health considerations under the prevailing pandemic guidelines further justify stringent conditions on bail.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Dhruvaram Muralidhar Sonar (Dr.) v. State of Maharashtra	(2019 (1) KHC 403)	Positive	The court cites this Kerala High Court decision to support that the offence may not be made out in certain circumstances, reinforcing the bail grant
Pramod Suryabhan Pawar v. State of Maharashtra	(2019 KHC 6829)	Positive	Cited for the proposition that the offence under consideration may not be made out, justifying bail in relevant contexts
Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition(C) No.1 of 2020	Positive	Used to justify directions to minimize prison occupancy and follow distancing norms during pandemic
Chidambaram P v Directorate of Enforcement	(2019 (16) SCALE 870)	Positive	Cited for bail jurisprudence that bail is the rule and refusal is the exception to ensure fair trial
W.P(C) No.9400 of 2020	WP(C) No.9400 of 2020	Positive	Full Bench directions within Kerala High Court regarding Covid-19 related prison guidelines referenced to support safe bail release

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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** **TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942** ## **Bail Appl..No.6305 OF 2020** **CRIME NO.1017/2020 OF Kulathupuzha Police Station , Kollam** ## **PETITIONER/ACCUSED:** **SHIJU AGED 41 YEARS S/O.MANIYAN, PONNARAKUNNU VADAKKUMKARA PUTHENVEEDU, KALLAYAM P.O., VATTAPPARA, KALLAYAM, THIRUVANANTHAPURAM DISTRICT. 695028** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENT/:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 6305 OF 2020 2 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------- B.A.No.6305 of 2020 ------------------------------Dated this the 13[th] day of October, 2020 ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the accused in Crime No.1017 of 2020 of Kulathupuzha Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 376 of the IPC. 3. The prosecution case is that the petitioner committed rape on the victim in this case suppressing his earlier marriage. According to the victim in this case, she gave consent to the petitioner for sex because there was a promise from the petitioner that he will marry her. 4. Heard the counsel for the petitioner and the ## B.A.No. 6305 OF 2020 3 ## learned Public Prosecutor. 5. The counsel for the petitioner submitted that even if, the entire allegations are accepted, no offence under Section 376 IPC is made out in this case. The counsel submitted that the allegation that the petitioner suppressed his earlier marriage is not correct. The counsel taken me through the F.I.statement which is produced as Anneuxre-1. In Annexure-1, it is stated by the victim that even after knowing that the petitioner married and there is a child in that marital relationship, the petitioner and the victim continued the relationship and they were living together as husband and wife. 6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that custodial interrogation of the petitioner is necessary. 7. After hearing both sides, I think, this bail application can be allowed on stringent conditions. I carefully perused the F.I. statement given by the B.A.No. 6305 OF 2020 4 victim in this case. I do not want to make any observation on the merit of the case. But it is an admitted fact that the defacto complainant gave consent for sex because there is a promise from the petitioner to marry her. The victim also stated in the F.I.Statement that even after knowing that the petitioner married earlier, because of the assurance of the petitioner that the petitioner will marry her immediately after the case pending before the Family Court is over, she consented for sexual relationship. Again I don't want to make any observation on the merit of the case. Considering the entire facts and circumstances, 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 Full Bench of this Court in **W.P(C)No.9400 of 2020** B.A.No. 6305 OF 2020 5 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. 2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty B.A.No. 6305 OF 2020 6 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 cooperate 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. Petitioner shall not leave India without permission of the Court. 5. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which she 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. If any of the above conditions are violated B.A.No. 6305 OF 2020 7 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** al/- B.A.No. 6305 OF 2020 8 _**Dhruvaram Muralidhar Sonar (Dr.) Vs. State of Maharashtra (2019 (1) KHC 403)**_ and in _**Pramod Suryabhan Pawar V. State of Maharashtra (2019 KHC 6829),**_ the offence is not made out.