Jayaprakash D Souza vs State Of Kerala And Ors

This Bail Application filed under Section 439 of Criminal Procedure Code was heard through Video Conference.

Petitioner is the accused in Crime No.514 of 2020 of Badiadukka Police Station. The above case is registered against the petitioner alleging

offences punishable under Sections 376 (1) and 313 of the IPC.

The prosecution case is that the victim who is a married women aged 32 was residing at Ratnagiri in Bela Village along with her in-laws. Her

husband is employed in Israel. According to the victim, on 1.3.2020 at about 10 p.m. when the defacto complainant returned to her bedroom, at that

time, the accused came to her house and compel her to take alcohol. The defacto complainant because of the compulsion consumed alcohol.

Thereafter the petitioner committed rape on her. Subsequently, the victim became pregnant. Thereafter, at the instance of the petitioner the pregnancy

was aborted. Hence, it is alleged that the accused committed the offence.

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

The counsel for the petitioner submitted that the petitioner earlier filed a bail application under Section 438 Cr.P.C before this Court and this Court

was not inclined to grant orders under Section 438 Cr.P.C. and directed the petitioner to surrender before the investigating officer. Accordingly, as

directed in Annexure-1 order, the petitioner surrendered before the investigating officer on 27.11.2020. Thereafter, the petitioner filed a bail application

before this Court as B.A.8161/2020. At that time, this Court was not inclined to grant bail. Therefore, the bail application was withdrawn. The counsel

submitted that now the petitioner is in custody from 27.11.2020. The counsel submitted that even if the entire allegations are accepted, the offence

under Section 376 IPC is not made out. The counsel submitted that the petitioner is ready to abide any conditions if this Court grant him bail.

The learned Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the allegation against the petitioner are very

serious. The Public Prosecutor submitted that the petitioner may not be released on bail at this stage.

After hearing both sides, I think, this bail application can be allowed on stringent conditions. Admittedly, the victim is aged 32 years and the

petitioner is aged 39. They are relatives. The admitted case is that, the petitioner entered the room of the victim and he had sexual intercourse with the

victim. Thereafter, the victim became pregnant. There is abortion of the pregnancy. I don't want to make any observation on the merit of the case.

These are matters to be considered by an investigating officer during the course of investigation. But considering the entire facts and circumstances

and also considering the fact that the petitioner is in custody from 27.11.2020 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:

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.

Petitioner shall not leave India without permission of the jurisdictional Court.

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.