Sharon Surendran vs State Of Kerala

2024:KER:73405 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946 BAIL APPL. NO. 7644 OF 2024 CRIME NO.763/2024 OF Guruvayoor Police Station, Thrissur PETITIONER/S: SHARON SURENDRAN, AGED 32 YEARS S/O. SURENDRAN, AREEKARA HOUSE, GURUVAYUR, IRINGAPURAM, PUHAMPALLY, GURUVAYUR, THRISSUR, PIN - 680103 BY ADVS. NANDITHA S. P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY N. BHAT RAHUL SUNIL SRUTHY K.K SOHAIL AHAMMED HARRIS P.P. RESPONDENT/S: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR ADV SRI P VIJAYABHANU SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: BAIL APPL. NO. 7644 OF 2024 2 2024:KER:73405 C.S.DIAS,J -------------------------------------------- Bail Application No.7644 of 2024 --------------------------------------------- Dated this the 3rd day of October, 2024 ORDER The application is filed under Sec.483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS') by the sole accused in Crime No.763 of 2024 of the Guruvayoor Police Station, Thrissur which is registered against him, for allegedly committing the offence punishable under Section 69 of the Bharatiya Nyaya Sanhita, 2023 (in short, 'BNS'). The petitioner was arrested and remanded to judicial custody on 27.08.2024. 2. The prosecution case, in brief, is that: the accused by promising to marry the survivor, had sexual intercourse with her from 12.03.2023 to 28.07.2024. However, the accused refused to marry the survivor. Thus, the accused committed the above offence. 3. Heard; Sri.P.Vijayabhanu, the learned Senior BAIL APPL. NO. 7644 OF 2024 3 2024:KER:73405 Counsel appearing for the petitioner and Smt.Seetha S, the learned Public Prosecutor 4. The learned Senior Counsel for the petitioner submitted the petitioner is totally innocent of the accusations levelled against him. The petitioner and the survivor were having a live-in-relationship in Dubai for nearly 1½ years. Their relationship was consensual in nature. It is only after the survivor returned to India, she has lodged the false complaint, stating that the petitioner had sexual intercourse with her by employing deceitful means. Since their relationship was consensual in nature, the offence under section 69 of the BNS will not be attracted in view of the decision of the Hon'ble Supreme Court in Mandar Deepak Pawar vs. The State of Maharashtra [2022 LiveLaw (SC) 649]. In any given case, the petitioner has been in judicial custody for the last more than one month, the investigation in the case is complete, the medical examinations have been conducted and the petitioner does not have any criminal antecedents. Therefore, the petitioner may be enlarged on bail. BAIL APPL. NO. 7644 OF 2024 4 2024:KER:73405 5. The learned Public Prosecutor opposed the application. She submitted that the petitioner has committed a serious crime by having sexual intercourse with the survivor by giving a false promise of marrying her. After having physical relationship with her, the petitioner has retracted from his promise. Therefore, the offence under Section 69 of the BNS is attracted. The investigation is in progress. If the petitioner is enlarged on bail, there is every likelihood of him threatening the witnesses and tampering with the evidence. Therefore, the application may be dismissed. 6. The prosecution case is that the petitioner had sexual intercourse with the survivor by employing deceitful means, i.e., by promising to marry the survivor. Subsequently, the petitioner retracted from his promise and has refused to marry the survivor. 7. In Vishnu vs. State of Kerala [2023 (4) KHC 1] this Court after scrutinising all the earlier decisions on the point has made a clear distinction between rape and BAIL APPL. NO. 7644 OF 2024 5 2024:KER:73405 consensual sex. It is held that unless there is an allegation or proof that the accused has given a false promise to marry the victim, the offence of rape cannot be attributed. A similar view is taken by this Court in X. vs. State of Kerala [2022 KHC 296]. 8. Recently, in Manish Sisodia v. Directorate of Enforcement [2024 INSC 595] the Honourable Supreme Court has observed that, over a period of time, the trial courts and the High Courts have forgotten a very well- settled principle of law that bail is not to be withheld as a punishment. From its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that "bail is the rule and jail is an exception". BAIL APPL. NO. 7644 OF 2024 6 2024:KER:73405 9. In Prabir Purkayastha v. State (NCT of Delhi) [2024 SCC OnLine SC 934], the Honourable Supreme Court has observed as follows:- "21. The Right to Life and Personal Liberty is the most sacrosanct fundamental right guaranteed under Articles 20, 21 and 22 of the Constitution of India. Any attempt to encroach upon this fundamental right has been frowned upon by this Court in a catena of decisions. In this regard, we may refer to following observations made by this Court in the case of Roy V.D. v. State of Kerala[(2022) SCC OnLine SC 929 : 2022 INSC 756]:-- "7. The life and liberty of an individual is so sacrosanct that it cannot be allowed to be interfered with except under the authority of law. It is a principle which has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens." 10. On a careful scrutiny of the materials on record, the rival submissions made across the Bar, and the materials placed on record, particularly on considering that even though the last incident occurred on 28.07.2024, the FIR was registered only on 27.08.2024, the petitioner has been in judicial custody for the last more than a month, the investigation in the case is practically complete, medical BAIL APPL. NO. 7644 OF 2024 7 2024:KER:73405 examinations have been conducted and the petitioner does not have any criminal antecedents, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: i. The petitioner shall appear before the Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m till the filing of the charge sheet. The petitioner shall also appear before the Investigating Officer on the third Saturday of every month till the conclusion of the trial in Crime No. 763/2024. ii. The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court BAIL APPL. NO. 7644 OF 2024 8 2024:KER:73405 or to any Police Officer or tamper with the evidence in any manner, whatsoever; iii. The petitioner shall not commit any offence while he is on bail; iv. The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; v. The petitioner shall not enter the Police Station limits where the survivor is residing till the conclusion of the trial in Crime No.763/2024, other than for the purpose of reporting before the Investigating Officer; vi. In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. vii. Application for deletion/modification of the bail conditions shall be moved and entertained by the court below. BAIL APPL. NO. 7644 OF 2024 9 2024:KER:73405 viii. Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663]. ix. The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case which is to be decided by competent Courts. Sd/- C.S.DIAS,JUDGE rkc/03.10.24 BAIL APPL. NO. 7644 OF 2024 1 2024:KER:73405 APPENDIX OF BAIL APPL. 7644/2024 PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE ORDER DATED 29-08-2024, IN CRL.M.P.NO.5882/2024 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, CHAVAKKAD. Annexure 2 TRUE COPY OF THE ORDER DATED 09-09-2024, IN CRL.M.C.NO.1249/2024 OF THE COURT OF THE I ADDITIONAL SESSIONS JUDGE, THRISSUR.