Ashraf K.P @ Ammed vs State Of Kerala

This Bail Application filed under Section 439 of Criminal Procedure Code (Cr.P.C.) was heard through Video Conference.

The Petitioner is the accused in Crime No.539 of 2020 of Padinharathara Police Station, Wayanad District. The above case is registered against the

petitioner alleging offences punishable under Sections 366, 376(1), 376(2)(n), 313 and 506 of the Indian Penal Code (IPC).

The prosecution case is that, the petitioner committed rape on the victim on a promise that, he will marry her. Subsequently, the petitioner withdrew

from the promise. It is alleged that, the petitioner abducted the victim on 20.3.2020 and took her to a rented house at Kappikkalam. It is also alleged

that, on 28.3.2020, the petitioner threatened her and committed sexual intercourse without her consent. The prosecutrix became pregnant because

there was continuous sexual intercourse from the side of the petitioner. It is alleged that, in the month of June, 2020, the petitioner forcefully aborted

her pregnancy. Hence, it is alleged that, the accused committed the offence.

Heard the learned counsel for the petitioner and the learned public prosecutor.

The learned counsel for the petitioner submitted that, even if the entire allegations are accepted, the offence under Section 376 IPC is not made out.

The counsel submitted that, the alleged incident happened in March, 2020. According to the victim it continued for a long time. The counsel for the

petitioner submitted that, the complaint was filed before the District Police Chief only on 11.11.2020. The counsel submitted that, even if the

averments in the complaint is accepted, the offence under Section 376 IPC is not made out. The counsel relied on the judgment of the Apex Court in

Dr.Dhruvaram Muralidhar Sonar v. The State of Maharashtra [2019(1) KHC 403 ]and Pramod Suryabhan Pawar v. The State of Maharashtra [2019

KHC 6829].

The counsel submitted that, the petitioner is in custody from 14.11.2020 onwards. The counsel submitted that, the petitioner is ready to abide any

conditions, if this Court is granting him bail.

The learned Public Prosecutor opposed this bail application. The public prosecutor made available the complaint filed by the victim. The public

prosecutor submitted that, there is a threat from the accused towards the victim and the rape is committed by threatening the victim.

After hearing both sides, I think, this bail application can be allowed on stringent conditions. Admittedly, the petitioner is in custody from 14.11.2020

onwards. I perused the complaint filed by the victim in this case. I do not want to make any observations on the merit of this case. Admittedly, the

victim is a major lady. Considering the entire facts and circumstances of this case and considering the fact that, the petitioner is in custody from

14.11.2020 onwards, I think, this bail application can be allowed on stringent conditions.

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.

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.

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:

The 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;

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;

The petitioner shall not leave India without permission of the jurisdictional Court;

The 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;

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;

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.