Manaf. P vs State Of Kerala

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

Petitioner is the accused in Crime No.738 of 2020 of Melparamba Police Station, Kasaragod. The above case is registered against the petitioner

alleging offences punishable under Sections 450 & 376(2)(n) IPC.

The prosecution case is that on 25.8.2020 at 7.30 pm and thereafter on 27.8.2020, 28.8.2020 and on 30.8.2020 the accused committed rape on the

prosecutrix. It is alleged that the petitioner trespassed into the de facto complainant's house and committed rape on these four days by climbing to the

1st floor.

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 under Sections 450 and 376 (2)(n) IPC is made

out in this case. The counsel submitted that the petitioner is aged 43 and the victim is aged 32. The allegation is that the petitioner committed rape on

the victim on three days continuously by trespassing into the house and climbing to the 1st floor with a ladder. The counsel submitted that this is

unbelievable. The counsel submits that unless there is consent from the victim such an incident will not happen. The counsel submitted that as directed

by this Court in BA No.7146 of 2020, the petitioner surrendered before the Investigating Officer and co-operate with the investigation. The counsel

submitted that the petitioner surrendered on 16.11.2020. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grant

him bail.

The Public Prosecutor opposed the bail application because there is a statement from the victim that the accused requested him to accommodate

his friend also on the next day and from that statement the intention of the accused is clear.

After hearing both sides, I think this bail application can be allowed on stringent conditions. The petitioner filed a bail application under Section 438

Cr.P.C before this Court earlier. This Court was not inclined to allow the same and the same was dismissed as per order dated 6.11.2020 in

B.A.No.7146 of 2020. But while dismissing the bail application, this Court directed the petitioner to surrender before the Investigating Officer within

ten days. As directed by this Court, the petitioner surrendered before the Investigating Officer and after interrogation the petitioner was produced

before the jurisdictional Magistrate. The jurisdictional Magistrate now dismissed the bail application of the petitioner as per Annexure-4 order.

Admittedly, the petitioner is aged 43 and the victim is aged 32. The allegation is that the petitioner trespassed into the house of the victim continuously

for 4 days and committed rape on her. I do not want to make any observation about the merit of the case.

Considering the entire facts and circumstances of the case and considering the detention period of the petitioner, I think this bail application can be

allowed on stringent conditions. I also considered Annexure-1 certificate produced by the petitioner in which it is stated that the mother of the

petitioner is ill with respiratory failure and she is a cancer patient.

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.