XXXXXXXXXX vs State Of Kerala

Ziyad Rahman A.A., J

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

The petitioner is the accused in Crime No.7/2023 of Ettumanoor Police Station which was registered for the offences punishable under Sections 342, 354, 354A(1)(i) and 376(2)(f) of the Indian Penal Code.

The prosecution case is that, on 31.12.2022 between 03.45 p.m and 6.00 p.m at the residence of the petitioner, the petitioner committed rape of the defacto complainant, who is none other than the mother-in-law of the petitioner and thereby committed the offences. As part of the investigation, the petitioner was arrested on 02.01.2023 and since then, he has been under judicial custody. Even though he approached the Sessions Court, Kottayam, seeking bail, the same was dismissed as per Annexure A1 order. This application for regular bail is submitted in such circumstances.

Heard Sri.Jinu Joseph, the learned counsel appearing for the petitioner and Sri. C.S Hrithwik, the learned Public Prosecutor for the State.

The learned counsel for the petitioner submitted that the petitioner is innocent of all the allegations. It is pointed out that, even the wife of the petitioner, who is the daughter of the victim, while his application for bail was pending consideration before the learned Sessions Judge, filed an affidavit stating that, the allegations raised against the petitioner are incorrect. It is further pointed out that, now, the investigation in this case is already over, and the final report is filed. Hence there is no purpose in keeping the petitioner under detention.

On the other hand, the learned Public Prosecutor would oppose the aforesaid application by pointing out that even though the final report is submitted, the chances of influencing the witnesses by the petitioner cannot be ruled out, if the petitioner is released on bail.

I have gone through the records and heard the contentions raised from both sides. It is true that, there are certain allegations against the petitioner, going by the statements of the victim given before the police and also before the learned Magistrate under Section 164 of Cr.P.C. However, the fact remain that the petitioner has been in custody since 02.01.2023 and the investigation in this case is already over. It is discernible from Annexure-A4 order passed by the learned Sessions Judge that, the wife of the petitioner has also submitted an affidavit supporting the contentions of the petitioner. When all the above aspects are taken into consideration, I am of the view that, the petitioner can be granted bail by incorporating appropriate conditions to ensure that he is not influencing the witnesses.

In such circumstances, the application is allowed on the following conditions:-

i) The petitioner shall be released on bail on executing a bond for Rs. 1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court.

ii) The petitioner shall appear before the Investigating Officer as and when required by him.

iii) The petitioner shall not commit any offence of similar nature while on bail.

iv) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

v) The petitioner shall not leave the State of Kerala without the permission of the trial Court.

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