Allowed

Abdul Kalam v. State of Kerala

Kerala HC21 Feb 2018Bail Appl./7695/2017

Case brief

AI extract

What is this about?

In an anticipatory bail application under Section 438 Cr.P.C. for rape and abetment, the High Court rejected the legal plea that rape is a compromiseable offence citing State of M.P. v. Madan Lal. However, relying on the victim's affidavit stating settlement and no objection, the Court granted pre-arrest bail subject to strict conditions including medical examination and passport surrender.

What did the court decide?

Bail granted with execution of bond of Rs. 50,000 and two sureties, subject to medical examination, passport surrender, and other conditions.

Abdul Kalam Vs State of Kerala — Bail and Remand | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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WEDNESDAY, THE 21ST DAY OF FEBRUARY 2018 / 2ND PHALGUNA, 1939

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Bail Appl..No. 7695 of 2017

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CRIME NO. 603/2017 OF MANNARKKAD POLICE STATION , PALAKKAD

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PETITIONERS/ACCUSED 1 & 2

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1 ABDUL KALAM

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S/O KUNJAPPA, AGED 32 YEARS, VAZHAYIL HOUSE,

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KOTTAPURAM POST, PALAKKAD.

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2 ANJU,

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ARAKKURSI, MANNARGHAT, PALAKKAD.

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BY ADVS.SRI.K.ANAND

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SMT.HARSHA S. NAIR SRI.BINU THANKAN SRI.M.ALFRED LIONEL WINSTON SRI.A.N.SINOJ

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RESPONDENTS/STATE & DE-FACTO COMPLAINANT.:

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STATE OF KERALA

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REP. BY PUBLIC PROSECUTOR,

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HIGH COURT OF KERALA, ERNAKULAM.682031.

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SUB INSPECTOR OF POLICE,

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MANNARKKAD POLICE STATION, PALAKKAD DISTRICT.

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SHAMEERA

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W/O ABDUL RASHEED, AGED 23 YEARS,

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THENGINTHODI VEEDU, KOTTAPURAM POST,

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SREEKRISHNAPURAM, MANNARKKAD , PALAKKAD.

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R3 BY ADV. SRI.P.M.MOHAMMED SALIN

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BY SR.PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15-02-2018, THE COURT ON 21-02-2018 PASSED THE FOLLOWING:

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R.NARAYANA PISHARADI, J

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************************* B.A.No.7695 of 2017

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Dated this the 21^st day of February, 2018

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O R D E R

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This is an application for anticipatory bail filed under Section

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438 Cr.P.C.

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The petitioners are the first and the second accused in

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the case registered as Crime No.603/2017 of the Mannarkkad police station under Sections 376 and 109 I.P.C.

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The prosecution case is that on 23.01.2017, at the house of the second accused, the first accused committed rape on the victim lady and that the second accused abetted commission of the offence of rape by the first accused. It is further alleged that on 26.01.2017, in a building at Ottappalam, the first accused again sexually assaulted the victim lady.

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Heard the learned counsel for the petitioners and the

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learned Public Prosecutor. Heard also the learned counsel who appeared for the de facto complainant, the victim. Perused the

B.A.No.7695/2017

case diary.

Learned counsel for the petitioners would submit that

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the matter has been settled between the petitioners and the de facto complainant. Learned counsel would further submit that the de facto complainant has filed an affidavit stating that the matter has been settled after conciliation and discussions and that the victim has no objection to grant anticipatory bail to the petitioners.

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The victim in the case has filed an affidavit. In the affidavit, it is stated that the dispute has been amicably settled between her and the petitioners. It is further stated that the case was initiated against the petitioners due to misunderstanding. It is also stated in the affidavit that the victim has no objection to grant anticipatory bail to both accused in the case.

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The plea that an offence under section 376 I.P.C has been settled between the victim and the accused cannot be accepted by this Court at this stage of the case. In State of M.P

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B.A.No.7695/2017

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v. Madan Lal : AIR 2015 SC 3003 , the Supreme Court has held

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as follows:

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“We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost. Dignity of a woman is a part of her non - perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to

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B.A.No.7695/2017

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be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility”.

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However, the victim has stated in the affidavit that she has no objection to grant anticipatory bail to the petitioners. Though the Court cannot accept the plea of compromise between the accused and the victim, nothing stands in the way of granting pre-arrest bail on imposing proper conditions. In the light of the stand taken by the victim, pre-arrest bail can be granted to the petitioners provided they shall co-operate with the investigation of the case.

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In the result, the application is allowed and it is ordered as follows:

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i) The petitioners shall be released on bail on executing bond for Rs.50,000/- each (Rupees fifty thousand only) with two

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B.A.No.7695/2017

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sureties each for the like amount in the event of their arrest by the police in Crime No.603/2017 of Mannarkkad Police Station.

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ii) The investigating officer is entitled to subject the first petitioner to medical examination including potency test before releasing him on bail.

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iii) The first petitioner shall appear before the investigating officer between 9 a.m and 11 a.m on all Saturdays for a period of three months from the date of his release on bail.

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iv) The petitioners shall surrender their passport in the Magistrate's Court concerned within three days from the date of their release on bail. If they have no passport, they shall file an affidavit to that effect in the Magistrate's Court concerned within that period.

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v) The petitioners shall not leave the State of Kerala without the prior permission of the jurisdictional Court.

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vi) The petitioners shall appear before the investigating officer as and when directed in writing to do so.

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B.A.No.7695/2017

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vii) If the petitioners violate any of the conditions of bail,

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the jurisdictional court concerned is at liberty to cancel the bail

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in accordance with law, without any further orders from this Court.

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

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jsr

Abdul Kalam v. State of Kerala

Case brief

What is this about?

What did the court decide?

Abdul Kalam v. State of Kerala

Case brief

What is this about?

What did the court decide?

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