Smijith Kumar @ Smith vs State Of Kerala

Bechu Kurian Thomas, J

This is an application seeking regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioner is the accused in Crime No.1282/2022 of Thiruvalla Police Station alleging offences under Sections 366 and 376(2)(n) of the Indian Penal Code, 1860.

According to the prosecution, the accused is alleged to have committed rape on the victim after promising to marry her during the period from August, 2021 till April, 2022 and thereafter backed out of the promise and thus committed the offences alleged.

Sri.T.P.Pradeep, the learned counsel for the petitioner contended that the entire allegations are false and even if it assumed to be true, still the same would reveal only a consensual relationship. The learned counsel further pointed out that the petitioner is a married man with two children and that the subsisting marriage is known to the victim. It was further submitted that the petitioner having been arrested on 29.06.2022, continued detention may not be permitted.

The learned counsel for the victim contended that petitioner had committed rape on the victim after promising to marry and that she was unaware of the subsisting marriage.  It was further pointed out that if the petitioner  is  released  on  bail,  there  is  every  chance  that  he  may intimidate or influence the witnesses.

Sri.Noushad K.A., the learned Public prosecutor opposed the grant of bail and submitted that there are criminal antecedents also against the petitioner as he is arrayed as an accused in six cases committed between the years 2014 and 2016.

I have considered the contentions. The petitioner was arrested on 29.06.2022 and has been in custody since then. The documents produced along with the bail application prima facie indicate the possibility of the victim being aware about the subsisting marriage of the petitioner. Though the said aspects are matters to be considered during the course of investigation/ trial, I am of the view that continued detention of the petitioner is not required in the nature of the allegations. Accordingly I allow this application on the following conditions :-

(a) Petitioner shall be released on bail on him 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 court having jurisdiction.

(b) Petitioner shall appear before the Investigating Officer as and when required.

(c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim or her family members.

(d) Petitioner shall not commit any similar offences while he is on bail.

(e) Petitioner shall not leave India without the permission of the Court having jurisdiction.

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