Salim P 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.679 of 2020 of Kuttiyadi Police Station, Kozhikode. The above case is registered against the petitioner

alleging offences punishable under Sections 376(2)(n) and 406 IPC.

The prosecution case is that the petitioner sexually abused the victim in this case by promising that he will marry her. It is alleged that the victim

became pregnant. Subsequently, the petitioner withdrew from the promise. Hence it is alleged that the petitioner committed the offences as alleged.

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

The counsel for the petitioner submitted that as directed by this Court in order dated 2.11.2020 in B.A.No.6861 of 2020 the petitioner surrendered

before the Investigating Officer and thereafter he was produced before the learned Magistrate. As per Annexure-A5 order the learned Magistrate

dismissed the bail application. The counsel submitted that the petitioner is in custody from 9.11.2020 onwards. The counsel submitted that the

petitioner is ready to abide any conditions, if this Court grant him bail. The counsel for the petitioner also submitted that in the light of the judgment of

the Apex Court in Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra & others (2019(1)KHC 403) and Pramod Suryabhan Pawar v. State of

Maharashtra & another (2019 KHC 6829) no offence is made out against the petitioner. The counsel submitted that the admitted prosecution case is

that the petitioner promised to the victim that he will marry her and based on that promise the victim gave consent for sexual intercourse. Admittedly,

the victim is a major girl. The counsel submitted that the petitioner is ready to abide any conditions, if this Court grant him bail.

The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioner surrendered only on 9.11.2020 and

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. The petitioner surrendered before the Investigating

Officer as directed by this Court in B.A.No.6861 of 2020. That was a bail application filed by the petitioner under Section 438 Cr.P.C. This Court

dismissed that bail application. Thereafter he surrendered before the Investigating Officer and after interrogation he was produced before the

jurisdictional Magistrate Court. As per Annexure-A5 order, the leaned Magistrate dismissed the bail application. Admittedly the victim is a married

lady. The admitted prosecution case is that the petitioner promised that he will marry her and based on that promise she gave consent for sexual

intercourse. Whether the offence under Section 376 IPC made out in such circumstances is a matter to be investigated by the Investigating Officer. I

do not want to make any observation about the merit of the case.

Considering the entire facts and circumstances of the case, 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.