Allowed

Vishnu v. State of Kerala

Kerala HC26 Nov 2020Bail Appl./7875/2020

Case brief

AI extract

What is this about?

In a bail application regarding kidnapping and rape of a minor, the High Court of Kerala allowed bail on stringent conditions considering the custodial timeline and COVID-19 protocols, despite rejection of the petitioner's defense of consensual relationship.

What did the court decide?

Petitioner released on bail with bond of Rs.50,000, two sureties for like amount, and stringent conditions including cooperation with investigation and social distancing compliance.

Vishnu Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2020)

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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 P.V.KUNHIKRISHNAN

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THURSDAY, THE 26TH DAY OF NOVEMBER 2020 / 5TH AGRAHAYANA, 1942

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Bail Appl..No.7875 OF 2020

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CRIME NO.1664/2020 OF Parassala Police Station , Thiruvananthapuram

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PETITIONER:

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VISHNU AGED 22 YEARS THATTAN VILA, MELPURAM,EDAKKODE PIN-629152

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BY ADV. SRI.S.R.AJITHKUMAR

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RESPONDENT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN-682031

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SRI.RENJITH.T.R., PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.A.No.7875 of 2020 2

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P.V.KUNHIKRISHNAN, J

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B.A.No.7875 of 2020

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Dated this the 26^th day of November, 2020

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O R D E R

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This Bail Application is filed under Section 439 of Criminal

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Procedure Code was heard through Video Conference.

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Petitioner is the accused in Crime No.1664 of 2020 of Parassala Police Station, Thiruvananthapuram. The above case is registered against the petitioner alleging offences punishable under Sections 363, 376(2)(i) IPC & Section 4 r/w Section 3 of

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the Protection of Children from Sexual Offences Act (for short

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'POCSO Act').

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The prosecution case is that on 3.9.2020 at about 10 hours, the petitioner kidnapped the victim minor girl aged 14 and committed sexual assault and rape on her and thereby

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committed the above said offences.

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Heard the counsel for the petitioner and the learned

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Public Prosecutor.

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B.A.No.7875 of 2020 3

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The counsel for the petitioner submitted that the petitioner and the victim girl are in love. From school days onwards they were in love. The counsel submitted that the allegation of rape is not correct. The counsel for the petitioner submitted that the parents of the petitioner is aware about the affair. But the parents of the victim is against this. Because of that a false case is registered against the petitioner. The counsel submitted that the petitioner is in custody from 24.9.2020 onwards. He is ready to abide any conditions, if this Court grant him bail.

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The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that consent is not a factor to be looked into in this case because the victim in this case admittedly is a minor. The Public Prosecutor submitted that the petitioner may not be released on bail at this stage.

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After hearing both sides, I think this bail application can be allowed on stringent conditions, considering the fact the petitioner is in custody from 24.9.2020 onwards. Admittedly, the petitioner is aged 22 and the victim girl is aged about 14

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B.A.No.7875 of 2020 4

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years. The petitioner claims that she is in love with the victim

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girl. But that is not a reason to commit sexual offence even if there is any consent from the side of victim. The Public Prosecutor made available the First Information Statement. In the First Information Statement the victim girl also admit the love affair with the petitioner. But she says that there is sexual intercourse with the petitioner. That is a matter to be investigated by the investigating officer. I do not want to make any observation about the merit of the case.

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Considering the entire facts and circumstances of the case and considering the detention period of the petitioner, I think this bail application can be allowed on stringent conditions.

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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

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Re: Contagion of COVID-19 Virus In Prisons case (Suo

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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

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directions for minimizing the number of inmates inside prisons.

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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.

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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:

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Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each

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for the like sum to the satisfaction of the jurisdictional Court.

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The petitioner shall appear before the

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B.A.No.7875 of 2020 6

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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.

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Petitioner shall not leave India without permission of the jurisdictional Court.

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Petitioner shall not commit an offence

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similar to the offence of which he is accused,

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or suspected, of the commission of which he is suspected.

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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.

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