Ismail vs State Of Kerala

Ziyad Rahman A.A., J

This is an application filed under Section 439 of the Code of Criminal Procedure seeking regular bail.

The petitioner is the sole accused in Crime No.415/2023 of Ollur Police Station. The offences alleged against the petitioner are punishable under Sections 341, 323, 376(2)(n), 506(i), 354A and 354B of the Indian Penal Code.

The prosecution case is that, during the period from May 2022 to 17.04.2023, the accused had forceful sexual intercourse with the defacto complainant and thereby committed the offences. According to the defacto complainant, the petitioner was the friend of the defacto complainant, and being aware of the fact that the defacto complainant was not in good terms with her husband, he entered into a relationship and thereby took her to various places and committed the sexual assault. It is also alleged that, on some occasions, the defacto complainant was forced to consume MDMA. The crime was registered on the basis of the information furnished by the defacto complainant and as part of the investigation, the petitioner was arrested on 20.04.2023. Since then, he has been under judicial detention. Even though, the petitioner submitted an application for bail, the same was dismissed as per Annexure A3 order on 25.05.2023.

Heard, Sri. Sam Isaac, the learned counsel appearing for the petitioner and Smt.Seetha S, the learned Public Prosecutor, appearing for the State.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. According to him, the sexual relationship between the petitioner and the defacto complainant was based on mutual consent and under no circumstances the offence under Section 376 would be attracted.

On the other hand, the learned Public Prosecutor would oppose the aforesaid application by pointing out that there are serious allegations against the petitioner which include the act of compelling the victim to consume narcotic drugs. The matter is even now under investigation and therefore, dismissal of the application is sought.

I have gone through the records and heard the contentions raised from both sides. It is true that, on going through the statement of the victim, there are certain allegations against the petitioner. However, the specific case put forward by the learned counsel for the petitioner is that all the instances of sexual intercourse were on the basis of mutual consent, and the victim is a matured lady, capable of taking decisions of her own.

After considering all the relevant aspects, I am of the view that taking into account the period of detention the petitioner has already undergone and the stage of the investigation, bail can be granted to the petitioner. It is understood that there is substantial progress in the investigation as well. In such circumstances, I deem it appropriate to allow this application.

Accordingly, the application is allowed on the following conditions:-

i) The petitioner shall be released on bail on executing a bond for Rs. 1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court.

ii) The petitioner shall fully cooperate with the investigation.

iii) The petitioner shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m every Wednesday until the filing of the final report.

iv) The petitioner shall also appear before the Investigating Officer as and when required by him.

v) The petitioner shall not commit any offence of similar nature while on bail.

vi) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

vii) The petitioner shall not leave the State of Kerala without the permission of the trial Court.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law.