Sani Ramdas vs State Of Kerala

P.V.Kunhikrishnan, J

This Bail Application is filed under Section 438 of Criminal Procedure Code (Cr.P.C.) .

The petitioner is the accused in Crime No.161/2024 of Kadavanthra Police Station. The above case is registered against the petitioner alleging offence punishable under Sections 354, 376, 376(2)(n) of IPC.

The prosecution case is that, on the promise of marriage, the petitioner had sexual intercourse with the defacto complainant and he did not keep up the promise of marriage and thereby, the petitioner committed the offence.

Heard the counsel for the petitioner and the Public Prosecutor.

The learned counsel for the petitioner submitted that even if the entire allegations are accepted, no offence is made out by the petitioner. The counsel also relied on the judgment of this Court in Girish v. State of Kerala and Another (2022 KHC 452). According to the petitioner, the petitioner is a married man and the same is known to the defacto complainant. Therefore, even if the allegations are accepted, the sexual intercourse is with the consent of the victim. Therefore, it is submitted that no offence is made out and the petitioner may be released on bail. The learned Public Prosecutor opposed the bail application.

After hearing both sides, I think this bail application can be allowed on stringent condition. The victim in this case is major. The admitted case is that the victim was raped from the house of the petitioner. It is also stated that the sexual intercourse was from a hotel in which the petitioner and the victim were residing. I do not want to make any observations about the merits of the case. Considering the facts and circumstances of the case, I think this bail application can be allowed on stringent conditions.

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 appear before the Investigating Officer within ten days from today and shall undergo interrogation;

After  interrogation,  if  the  Investigating Officer proposes to arrest the petitioner, he shall be released on bail on 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;

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 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;

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.

Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any given by the petitioner even while the petitioner is on bail as laid down by the Hon’ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another (2020 (1) KHC 663).