On 4th September 2020, the Kerala High Court involving a single bench judge of Honourable Mr Justice P.V. Kunhikrishnan heard the case Ashad v. The State of Kerala. This Bail Application filed under Section 439 of the Criminal Procedure Code was heard through Video Conference.
Facts of the Case
The petitioner, Ashad and the victim girl were in love. They became friends through Facebook. Then one day in August 2019 and on 15.12.2019, accused, Ashad committed penetrative sexual assault on the victim. Thereafter, in January 2020 the accused took the victim to Wayanad on his bike. It is alleged that the accused committed the offences. The case of the victim is that she gave consent for sexual intercourse because Ashad promised to marry her. Subsequently, the petitioner, Ashad withdrew from the same because Ashad asked the victim girl to change to the Muslim community and the victim was not ready to convert to the Muslim community. The petitioner, Ashad is an accused of Mukkom Police Station, Kozhikode. The case registered against the petitioner is alleging offences punishable under section 366, 376(2) (n) of IPC and Section 5(l) of Protection of Children from Sexual Offences Act (‘POCSO Act’).
Petitioner’s Argument
The petitioner argued that, even if the entire allegations are accepted, no offence is made out. They also argued that the petitioner, Ashad is aged 21 and the victim is now 18. The petitioner said that the alleged occurrence was in August 2019 and the counsel submitted that the complaint was filed only in March 2020. The counsel submitted that he is in detention from 14.7.2020. The counsel submitted that the petitioner is in custody for the last 52 days.
Respondent’s Argument
The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner committed rape on a minor girl. The consent or love affair is not a matter to be considered in such cases.
Court’s Observation
The court observed into the case Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870), observed that it is a well-accepted principle that, the bail is the rule and the jail is the exception and the basic jurisprudence relating to bail remains the same in as much as the grant of bail is the rule and refusal is the exception to ensure that, the accused has the opportunity of securing fair trial.
Court’s Decision
Considering the entire facts and circumstances of the case and considering the detention period of the petitioner, the bail application was allowed on the following stringent conditions:
- The petitioner shall be released on bail on executing a bond for Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
- The 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 to dissuade him from disclosing such facts to the Court or any police officer.
- The petitioner shall not leave India without permission of the jurisdictional Court.
- The 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.
- The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government concerning social distancing in the wake of COVID 19 pandemic.If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail per the law, even though the bail is granted by this Court.
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