Balkees vs State Of Kerala

This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.

Petitioner is the third accused in Crime No.616 of 2020 of Changaramkulam Police Station. The above case is registered against the petitioner

alleging offences punishable under Sections 354A, 376 (2) (l), 506 & Section 109 r/w Section 34 of the IPC.

The prosecution case is that, on 4.4.2019, the second accused who is the brother of the petitioner married the victim who is a mentally retarded

lady. It is alleged that the defacto complainant conducted the said marriage of her daughter under the compulsion of accused Nos.1 and 2. Subsequent

to the marriage, the second accused went abroad and the first accused who is the husband of the petitioner herein with the knowledge of the second

accused committed rape on her and subjected her to unnatural sex. The allegation against the petitioner is that the petitioner instigated the parents of

the defacto complainant to conduct the marriage.

Heard the counsel for the petitioner and the learned Public Prosecutor.

The counsel for the petitioner submitted that even if the entire allegations are accepted, no offence is prima facie made out against the petitioner.

The counsel submitted that the only allegation against the petitioner is that he abetted the offence.The counsel submitted that there is no evidence to

attract the offence under Section 109 of the IPC. The counsel submitted that the petitioner is a lady and she is ready to abide any conditions if this

Court grant her bail.

The learned Public Prosecutor opposed the bail application. But the Public Prosecutor submitted that, the only allegation against the petitioner is that

she instigated the parents of the victim to conduct the marriage.

After hearing both sides, I think this Bail Application can be allowed on stringent conditions. There is no serious allegations against the petitioner.

The main allegation is against the first and second accused. I make it clear that if any bail application is filed by the first and second accused, the same

will be considered strictly on merit without considering the fact that this bail application is allowed. Considering the entire facts and circumstances of

the case, I think, the petitioner who is the third accused in this case can be released on bail 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 appear before the Investigating Officer within ten days from today and shall undergo interrogation.

After interrogation, if the Investigating Officer propose to arrest the petitioner, she shall be released on bail executing a bond for a sum of

Rs,.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned.

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 her from disclosing such facts to the Court or to any police officer.

Petitioner shall not leave India without permission of the Court.

Petitioner shall not commit an offence similar to the offence of which she is accused, or suspected, of the commission of which she 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.