Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942 Bail Appl..No.6455 OF 2020 CRIME NO.268/2020 OF Irikkur Police Station , Kannur PETITIONER: ANTO.E AGED 39 YEARS SON OF SEBASTIAN, ELLICKAL HOUSE, KOOTTUPUZHA, PERATTA, KANNUR DISTRICT. BY ADV. SRI.CIBI THOMAS
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 09.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: B.A.No.6455 of 2020 2 P.V.KUNHIKRISHNAN, J -------------------------------- B.A.No.6455 of 2020 ------------------------------- Dated this the 9th day of October, 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.268 of 2020 of
Irikkur Police Station, Kannur. The above case is registered against the petitioner alleging offences punishable under Sections 366, 376(1), 354A(1)(ii), 354 D(1)(i), 506(ii) IPC. Section 66(E) of the Information Technology Act is also alleged against the petitioner.
3. The prosecution case is that the accused managed to have friendship with the victim through face book and misusing the friendship, he coerced the victim to go with him
on 18.1.2020. According to the victim, he took her to his sister's residence at Kiliyanthara and committed rape on her at 1.30 p.m. Subsequently, by threatening the victim that he will
B.A.No.6455 of 2020 3 reveal the incident to her husband, he coerced the victim to make a video call to him in a naked state. The accused continued his threat demanding sexual favours from the victim threatening that if she did not succumb to his demand he would send the screen shot of the video call made by her to her husband.
4. Heard the counsel for the petitioner and the learned Public Prosecutor.
5. The counsel for the petitioner submitted that the
petitioner is in custody from 20.6.2020 onwards. The counsel submitted that the final report is already filed in this case. The counsel submitted that even if the entire allegations are accepted, it is clear that the victim gave consent for sex. The counsel submitted that the alleged incident occurred on 18.1.2020 and First Information Statement is on 19.6.2020. The counsel submitted that it is unbelievable that the victim travelled with the petitioner for about 20 K.M and thereafter the petitioner committed rape on the victim. The counsel for the petitioner submitted that the petitioner is ready to abide B.A.No.6455 of 2020 4 any conditions, if this Court grant him bail.
6. The Public Prosecutor opposed the bail application. The Public Prosecutor made available the report filed by the Investigating Officer in this case.
7. After hearing both sides, I think this bail application can
be allowed on stringent conditions. The petitioner is in custody from 20.6.2020. Now he is in custody for more than 90 days. The petitioner is aged 39 and the victim is aged 35. Admittedly, the victim is a married lady. According to the victim, she met the petitioner through face book and she went with the petitioner to a place from where the alleged rape committed. 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.
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
B.A.No.6455 of 2020 5 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 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 B.A.No.6455 of 2020 6 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
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 B.A.No.6455 of 2020 7 Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic.
6. 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, JUDGE cms