High Court of KeralaSingle Judge2020-04-28Bail granted

Sreenish v. State of Kerala

Case / Petition Number:BAIL APPL.NO.2504 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2020-04-28
Court Decision / Holding: This bail application is allowed; the petitioner is released on bail with conditions including bond and sureties, appearance on Saturdays, non-tampering with evidence, no leaving Kerala, and subsequent compliance obligations to the jurisdictional court.
Final Disposition: Bail granted

Parties to the Case

Appellants / Petitioners

SHRI. SREENISH

Respondents

THE STATE OF KERALA represented by Public Prosecutor, High Court of Kerala
THE SUB INSPECTOR OF POLICE, BATHERI POLICE STATION, WAYANAD DISTRICT

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T.G. Rajendran

Counsels for Respondents

• Public Prosecutor Sri Bineesh E.C.

Case Synopsis & Summary

This High Court bail application concerns Shri Sreenish, accused in Crime No. 61 of 2020 at Bathery Police Station, Wayanad, charged under Section 376(2)(n) IPC. The Magistrate and Sessions Court denied bail; the applicant has been in custody for 47 days, the investigation is nearly complete, and he maintains innocence. The petitioner, a marginal laborer and sole breadwinner, contends that continued detention is unwarranted and that the case rests on contested facts. The prosecuting authority opposes bail, citing the gravity of the offences and the need to safeguard the victim and ensure an unimpeded investigation. The High Court, noting the evolving legal landscape during the COVID-19 pandemic, relies on Supreme Court pronouncements that bail is the general rule and jail an exception, and on directions to decongest prisons. It also refers to a Full Bench order directing prison decongestion. Considering the petitioner's 47 days in custody, completion of investigation, and COVID-19 policy shifts, the Court grants bail with conditions, including furnishing a bond and sureties, regular reporting, non-tampering with witnesses, refraining from leaving Kerala, and a deadline for bond execution upon reopening. The order directs the jail to release the applicant after obtaining his address and sureties, subject to monitoring by police. The decision reinforces the bail-as-rule principle while balancing the interests of the victim and public safety in exceptional circumstances.

Provisions of Law Cited

Section 439 of the Code of Criminal ProcedureSection 376(2)(n) of the Indian Penal CodeArticle 21 of the Constitution of India

Legal Doctrines & Maxims

Bail is the rule and jail is the exception.
Right to personal liberty under Article 21 of the Constitution.
COVID-19 prison decongestion directives justify bail in appropriate cases.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues absolute innocence; he is a daily wage worker and sole breadwinner. He has been in detention for 47 days; the investigation is practically complete. The victim is educated and a divorcee; the prosecution's case rests on pre-trial facts. Citing Sanjay Chandra v. CBI, Gurbaksh Singh Sibbia, Nikesh Tarachand Shah and P. Chidambaram, the applicant contends bail is the rule; detention should be avoided unless necessary, especially in view of COVID-19 decongestion directives. The applicant undertakes to comply with conditions and appears for investigation as directed.

Contentions of Respondents

The State contends the offence is serious (rape under Section 376(2)(n) IPC); there is a need to protect victims and ensure a thorough investigation; the COVID-19 guidelines advocate caution and decongestion only where appropriate; bail should be refused if there is risk of tampering with witnesses or if the investigation is not complete. The Public Prosecutor relies on established bail principles and the gravity of the offence.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Sanjay Chandra v. CBI	2012 (1) SCC 40	Positive	Bail is the rule and jail an exception, as cited by the court.
Nikesh Tarachand Shah v. Union of India	2018 (11) SCC 1	Positive	Reiterates bail principle and the constitutional underpinnings.
Gurbaksh Singh Sibbia v. State of Punjab	(1980) 2 SCC 565	Positive	Foundational bail doctrine supporting personal liberty.
P. Chidambaram v. Directorate of Enforcement	(2019) SCC Online SC 1549	Positive	Fortifies bail proposition in modern jurisprudence.
In Re: Contagion of COVID-19 Virus In Prisons	Suo Motu Writ Petition (C) No.1 of 2020	Positive	Directed decongestion measures affecting bail considerations.

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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 C.S.DIAS TUESDAY, THE 28TH DAY OF APRIL, 2020 /8TH VAISAKHA, 1942 BAIL APPL.NO.2504 OF 2020 CRIME NO 61/2020 OF BATHERI POLICE STATION, ## WAYANAD DISTRICT ## PETITIONER/ACCUSED: SHRI. SREENISH, AGED 24 YEARS, S/O. SREEDHARAN, KIDANGIL COLONY, KIPPADI, BATHERY WAYANAD DISTRICT. BY ADV. SRI. T.G. RAJENDRAN ## RESPONDENTS/COMPLAINANT: 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031. 2. THE SUB INSPECTOR OF POLICE, BATHERI POLICE STATION, WAYANAD DISTRICT-673 592 BY PUBLIC PROSECUTOR SRI **.BINEESH E.C.** THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.04.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: BAIL APPL.NO.2504 OF 2020 2 ## **ORDER** This is an application filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner is the accused in Crime No.61 of 2020 of the Bathery Police Station. The petitioner is alleged to have committed the offences punishable under Section 376 (2) (n) of the Indian Penal Code. 3. The prosecution case, in brief, is that: in the 1[st] week of May, 2019, the petitioner took the de facto complainant from her house for a flower show. Thereafter, he committed rape on the de facto complainant in a coffee plantation. Subsequently, in the 1[st] week of November, 2019 also, he again raped the victim. He made the victim believe that he would marry her. Thus, the petitioner has committed the above offence. 4. The petitioner was arrested on 12.03.2020. His applications for bail were rejected by the Judicial First Class Magistrate's Court -I, Sulthan Bathery as per order dated 3 BAIL APPL.NO.2504 OF 2020 17.03.2020 in CMP No.2014 of 2020 and by the Sessions Court, Kalpetta, by order dated 02.04.2020 in Crl.M.C.No.193 of 2020. 5. Heard the learned counsel for the petitioner and the learned Public Prosecutor via video-conferencing. 6. The learned counsel for the petitioner argued that the petitioner is absolutely innocent of the accusations levelled against him. The victim is an educated lady and she is a divorcee. The petitioner is a coolie worker and he is the sole bread winner of his family. The petitioner has been in detention for last 47 days. The investigation in the case is practically completed. Hence, the petitioner may be enlarged on bail. 7. The learned Public Prosecutor opposed the application. 8. The Hon'ble Supreme Court in **Sanjay Chandra v. CBI** [2012 (1) SCC 40] held as follows: 4 BAIL APPL.NO.2504 OF 2020 "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution". 9. Recently, the Honourable Supreme Court in **Nikesh Tarachand Shah v. Union of India** [2018 (11) SCC 1] after going back to the days of the Magna Carta and after referring to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] has reiterated the same view in **Sanjay Chandra v. CBI (supra).** Again, in P **.Chidamabram v. Directorate of Enforcement** [(2019) SCC Online SC 1549] the above proposition has been fortified. 10. After the outbreak of the Novel Corona Virus (COVID -19) pandemic in the country, the Hon'ble Supreme Court in In Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition (C) No.1 of 2020) observed that the issue of overcrowding of prisons is a matter of serious concern. The State Governments were directed to take adequate measures to de-congest the prisons. Following the above direction, the 5 BAIL APPL.NO.2504 OF 2020 Home Department, Government of Kerala has promulgated order dated 25.03.2020, inter alia, directing the release of under-trial prisoners alleged to have committed offences punishable with punishment for seven years or less. Later, a Full Bench of this Court by order dated 25.03.20202 in W.P.(C) No.9400 of 2020 (Suo Motu), has issued directions to decongest the prisons in the State, keeping in mind the proposition that bail is the rule and jail is the exception. 11. Having regard to the facts and circumstances of the case, particularly the fact that the petitioner has been in incarceration for the last 47 days; that the investigation in the case is complete; that the petitioner's continued detention is unnecessary; the legal proposition laid down by the Honourable Supreme Court in the afore cited decisions; and the directions of the Hon'ble Supreme Court and a Full Bench of this Court to decongest prisons in view of Covid-19 pandemic, I am inclined to allow this bail application. 12. In the result this bail application is allowed, on the following conditions:- BAIL APPL.NO.2504 OF 2020 6 (i) Due to the present National lock-down and the closure of Courts, the Jail Superintendent, where the petitioner is incarcerated, is directed to release the petitioner on him furnishing his permanent address and phone number and the addresses and phone numbers of his proposed sureties/immediate relatives. The petitioner shall also file an undertaking to the Jail Superintendent that he and his sureties will execute the bail bond before the jurisdictional Court within one week of its re-opening. The Jail Superintendent after ensuring the compliance of the above conditions, shall release the petitioner to the Station House Officer of the Police Station where the crime has been registered, who shall after noting down the above details, release the petitioner. The Investigating Officer shall keep a close vigil on the whereabouts of the petitioner. (ii) The petitioner shall within one week from the re-opening of the jurisdictional Court, if not 7 BAIL APPL.NO.2504 OF 2020 already re-opened, execute a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court. (iii) The petitioner shall appear before the Investigating Officer on all Saturdays between 10.00 a.m and 11 a.m till final report is filed. (iv) The petitioner shall not tamper with the evidence or influence the witnesses in the case, in any manner, whatsoever. (v) The petitioner shall not commit any offence while on bail. (vi) The petitioner shall not leave the State of Kerala without the permission of the jurisdictional court. (vii) Needless to mention that, if the petitioner violates any of the above conditions, the Station House Officer shall be at liberty to approach the 8 BAIL APPL.NO.2504 OF 2020 jurisdictional Court and file appropriate application seeking for cancellation of the bail. Sd/- **C.S.DIAS, JUDGE** kkj