Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942 Bail Appl..No.6033 OF 2020 CRIME NO.2783/2020 OF Town East Police Station , Thrissur PETITIONER: ASIF AGED 32 YEARS SAJNA MANZIL, KILIMANOOR, PULIMATH DESOM, THRIVANANTHAPURAM PIN-695612 BY ADV. SRI.E.VIJIN KARTHIK
RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM PIN-682031 SRI.AJITH MURALI, PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: B.A.No.6033 of 2020 2 P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.6033 of 2020 ------------------------------- Dated this the 25th day of September, 2020
ORDER
This Bail Application filed under Section 439 of Criminal Procedure Code was heard through Video Conference.
2. Petitioner is the accused in Crime No.2783 of 2020 of
Town East Police Station, Thrissur. The above case is registered against the petitioner alleging offence punishable under Sections 354(B), 506(i), 376, 377 IPC and Section 119(b) of Kerala Police Act. 3.The prosecution case is that in December, 2016 at Green
Palace Lodge, Kuruppam Road, Thrissur, the accused using criminal force disrobed the de facto complainant and took her photographs and videos. Thereafter, on 13.3.2019 at 11.00 am, in the very same lodge the accused tied the hands of the de facto complainant behind and committed carnal intercourse. Hence, it is alleged that the petitioner committed the offence.
B.A.No.6033 of 2020 3 The First Information Statement is given on 22.5.2020.
4. Heard the counsel for the petitioner and the Public Prosecutor.
5. The counsel for the petitioner submitted that the alleged incident happened in December, 2016 and on
13.3.2019. The victim is filing the complaint only on 22.5.2020. That itself shows that the allegation against the petitioner is not correct. The counsel submitted that the petitioner is in custody from 11.8.2020 onwards. The counsel submitted that the petitioner is ready to abide any condition, if this Court grant him bail.
6.The learned Public Prosecutor seriously opposed the bail
application. The Public Prosecutor submitted that the petitioner committed serious offence. The Public Prosecutor submitted that the petitioner even sent the photographs and videos of the victim to a person to whom the petitioner's marriage is fixed. The Public Prosecutor submitted that in the said circumstances, the victim filed the complaint now. The Public Prosecutor submitted that the delay is explained by the victim in this case.
B.A.No.6033 of 2020 4
7. It is an admitted fact that the petitioner is aged 32 and
the victim is aged 22. It is also an admitted fact that when the alleged incident happened, the victim was a major. The allegation is that the petitioner committed the offences on 13.3.2019 and in December 2016. The victim is coming with a complaint on 22.5.2020. The petitioner is in custody from 11.8.2020 onwards. I do not want to make any observation about the merit of the case.
8. Considering the entire facts and circumstances of the
case, I think this bail application can be allowed on stringent conditions. I perused the First Information Statement given by the victim. The main grievance of the victim is that the petitioner is misusing the photographs of the victim. According to her, the petitioner even sent those photographs and videos to a person with whom the victim's marriage was fixed. In such circumstances, I think the principle laid down by this Court in the order dated 17.9.2020 in BA No.5831 of 2020 can be extended in this case also. There can be a direction to the petitioner not to use any social media including Facebook,
B.A.No.6033 of 2020 5 Whatsapp, Twitter, Instagram etc. till the final report is filed in this case. If any final report is filed by the police and the Court concerned took cognizance of any offence, this condition will continue till the trial is over. The Investigating Officer will inform the victim that such a condition is there. If any complaint is received from victim about the violation of that condition, the Investigating Officer can take necessary steps in accordance to law. The relevant portion of the order dated 17.9.2020 in B.A.No.5831 of 2020.
“12. In this case the main grievance of the victim is that the petitioner is circulating the photographs of the victim girl in social media. It is also the case of the victim that the petitioner is threatening the victim to the effect that he will publish the photographs of the victim girl. The allegation is that the petitioner is even demanding money. In such circumstances, there is nothing wrong in imposing a condition that the accused shall not use social media like Face Book, Whatsapp, Twitter, Instagram etc., till the investigation in Crime No.1017/2020 of Njarackal Police Station is completed. I also make it clear that if any final report is filed against the petitioner before the court concerned after investigation and the court concerned took cognizance of the same, the above condition will continue till the trial of the above case is over. With such a condition, this bail application can be allowed. Heavens
B.A.No.6033 of 2020 6
will not fall down if a condition is imposed in a bail order restraining the accused in a rape case in using social media, especially when it is to protect the victim girl's privacy. There can be a direction to the investigating officer to inform the victim also about this condition and if any complaint in this regard is received from the victim, the investigating officer will act in accordance to law. I also make it clear that, while granting bail in this case, I considered the fact that the petitioner is only aged 23 years, and he is in detention.” The above principle is applicable in this case also.
9. 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.
10. 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 B.A.No.6033 of 2020 7 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.
11. 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. Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
2. 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 inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from
B.A.No.6033 of 2020 8 disclosing such facts to the Court or to any police officer.
3. Petitioner shall not leave India without permission of the jurisdictional Court.
4. 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.
5. 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.
6. The petitioner shall surrender his passport before the jurisdictional Court.
7. The petitioner shall not use social media like Face Book, Whatsapp, Instagram etc., till the investigation in Crime No. 2783 of 2020 of Town East Police Station, Thrissur is B.A.No.6033 of 2020 9
completed. If any final report is filed against the petitioner in this case after investigation and the court concerned took cognizance of the same, the above condition will continue till the trial in that case is over. The investigating officer will intimate about this condition imposed on the petitioner to the victim in this case. If any violation of this condition is reported by the victim, the investigating officer will do the needful in accordance to law.
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. The registry will forward a copy of this
order to the investigating officer in this case.
SD/- P.V.KUNHIKRISHNAN, JUDGE cms