When directions are issued by this Court, the lower
judiciary is bound to obey the same. If there is any reason for
not complying the orders, it should be specifically mentioned
by the learned Magistrate. I do not want to make any
observation in this case, because it is a matter to be looked
into by the Registrar (Subordinate Judiciary) and other
authorities on the administrative side. If the contention raised
by the counsel for the petitioner is correct, it is a serious
matter. This Court directed to consider the bail application
preferably on the date of filing of the same. But the learned
Magistrate adjourned the matter twice without mentioning
anything about the order passed by this Court. Admittedly the
order of this Court is produced before the Magistrate. The
learned Magistrate is free to dismiss or allow the bail
application because, there is no direction in the order to allow
or dismiss the bail application. But, there is a direction to consider
the bail application preferably on the date of surrender itself.
Without assigning any reason, the learned Magistrate adjourned the
bail application on two occasions. If there was any other
inconvenience to the learned Magistrate for passing the order, the
same ought to have been mentioned in the order. I leave it there.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR. JUSTICE P.V.KUNHIKRISHNAN
Dated: 04TH DAY OF DECEMBER 2020
Bail Appl..No.8112 OF 2020
CRIME NO.562/2020 OF Vanitha Cell , Pathanamthitta
ABDUL REHMAN Vs STATE OF KERALA
Dated this the 4th day of December, 2020
This Bail Application is filed under Section 439 of Criminal
Procedure Code was heard through Video Conference.
2. Petitioner is the accused in Crime No.562 of 2020 of
Vanitha Cell, Pathanamthitta. The above case is registered
against the petitioner alleging offences punishable under
Section 376 (2)(n) and Section 406 IPC. The offence under
Sections 66E and 67 of the Information Technology Act is also
alleged.
3. The prosecution case is that the petitioner under the
pretext to release the husband of the de facto complainant
from judicial custody, collected an amount of Rs.5,00,000/-
from the complainant. Thereafter, under the pretext of meeting
the lawyer, the victim was taken to a lodge and from there the
petitioner committed forcible rape on the victim. Thereafter,
the petitioner committed sexual intercourse with the victim on
several occasions. It is alleged that the victim travelled with
the petitioner at Delhi, Bombay and Chennai and they stayed
together. Subsequently, the husband was released from jail.
Then the husband became suspicious about the relationship
between the petitioner and the victim. Thereafter, the victim
left the house. The victim herself admit that she travelled with
the petitioner at different places. It is alleged that during that
period the petitioner committed raped on her. It is also alleged
that the petitioner took nude photographs of the victim and
threatened the victim that he will upload the same in social
media. This is the sum and substance of the allegation against
the petitioner.
4. Heard the counsel for the petitioner and the learned
Public Prosecutor.
5. The counsel for the petitioner submitted that the
petitioner filed a bail application before this Court under
Section 438 Cr.P.C earlier as B.A.No.7559 of 2020. This Court
was not inclined to grant bail under Section 438 Cr.P.C. But
this Court directed the petitioner to surrender before the
Investigating Officer within ten days and thereafter, the
Investigating Officer was allowed to interrogate the petitioner.
If the petitioner is arrested, the Investigating Officer was
directed to produce the petitioner before the jurisdictional
Court. The jurisdictional Court was directed to consider the
bail application of the petitioner preferably on the date of filing
of the same itself. The counsel submitted that the petitioner
surrendered before the Investigating Officer. After
interrogation, the Investigating Officer produced the petitioner
before the jurisdictional Court. The counsel submitted that
flouting the directions of this Court in the bail order, the
learned Magistrate adjourned the matter on two occasions and
finally dismissed the bail application on 27.11.2020. The
petitioner moved the bail application after giving prior notice to
the prosecutor concerned. The counsel submitted that it is a
clear case in which the learned Magistrate violated the order
passed by this Court. Moreover, the counsel also submitted
that even if the entire allegations against the petitioner are
accepted, the offence under Section 376 IPC is not made out.
The counsel submitted that the petitioner is in custody from
25.11.2020 onwards. The counsel submitted that the petitioner
is ready to abide any conditions, if this Court grant him bail.
6. The Public Prosecutor opposed the bail application. The
Public Prosecutor submitted that the allegation against the
petitioner are very serious.
7. It is an admitted fact that the petitioner moved an
application under Section 438 Cr.P.C before this Court. This
Court was not inclined to grant bail to the petitioner under
Section 438 Cr.P.C. In such circumstances, this Court issued
the following directions.
1. The petitioner will surrender before the
Investigating Officer within ten days from
today.
2. If the petitioner surrender before the
Investigating Officer, the Investigating Officer
can interrogate him. After interrogation if the
petitioner is arrested, he will be produced
before the jurisdictional court on the same day.
3. At that stage, if any bail application is
filed by the petitioner after giving prior notice
to the Prosecutor concerned, the learned
Magistrate will consider the bail application
preferably on the date of filing of the same
itself.
8. One of the grievance raised by the petitioner is that the
learned Magistrate ignoring the directions of this Court, bail
application was adjourned on two occasions. The counsel
submitted that there is no mentioning of the order passed by
this Court in the order dismissing the bail application. The
specific averment is made in the bail application which is
extracted hereunder:
“As per the direction of this Hon'ble Court
this petitioner surrendered before the
Investigating Officer on 25.11.2020. The
petitioner was produced before the
Jurisdictional Magistrate on the same day at
about 3 pm. This petitioner has moved regular
bail application before the Magistrate Court
after giving prior notice to the prosecutor
concern. After hearing the petitioner the case
was adjourned to 26.11.2020. On that day the
learned Magistrate again posted to 27.11.2020
for Police report. The learned magistrate
dismisses the bail application filed by the
petitioner on 27.11.2020. The true copy of the
order in Crl.M.P No.1497/2020 is produced
herewith and marked as Annexure-II. It is
respectfully submitted that no custody
application was filed by the police in the above
case.”
9. When directions are issued by this Court, the lower
judiciary is bound to obey the same. If there is any reason for
not complying the orders, it should be specifically mentioned
by the learned Magistrate. I do not want to make any
observation in this case, because it is a matter to be looked
into by the Registrar (Subordinate Judiciary) and other
authorities on the administrative side. If the contention raised
by the counsel for the petitioner is correct, it is a serious
matter. This Court directed to consider the bail application
preferably on the date of filing of the same. But the learned
Magistrate adjourned the matter twice without mentioning
anything about the order passed by this Court. Admittedly the
order of this Court is produced before the Magistrate. The
learned Magistrate is free to dismiss or allow the bail
application because, there is no direction in the order to allow
or dismiss the bail application. But, there is a direction to consider
the bail application preferably on the date of surrender itself.
Without assigning any reason, the learned Magistrate adjourned the
bail application on two occasions. If there was any other
inconvenience to the learned Magistrate for passing the order, the
same ought to have been mentioned in the order. I leave it there.
10. Admittedly, the petitioner is in custody from
25.11.2020. The Public Prosecutor made available the First
Information Statement in this case. I do not want to make any
observation about the merit of the case. But considering the
entire facts and circumstances of the case and also considering
the fact that the petitioner is in custody from 25.11.2020, I
think this bail application can be allowed.
11. 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
Re: Contagion of COVID-19 Virus In Prisons case (Suo
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
directions for minimizing the number of inmates inside prisons.
12. 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.
13. 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:
1. Petitioner shall be released on bail on
executing a bond for Rs.50,000/- (Rupees Fifty
Thousand only) with two solvent sureties each
for the like sum to the satisfaction of the
jurisdictional Court.
2. 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 so as to dissuade him from
disclosing such facts to the Court or to any
police officer.
3. Petitioner shall not leave India without
permission of the jurisdictional Court.
4. 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.
5. 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.
6. If any of the above conditions are
violated by the petitioner, the jurisdictional
Court can cancel the bail in accordance to law,
even though the bail is granted by this Court.
The Registry will issue a copy of this order to the
Registrar(Subordinate Judiciary) for looking into the matter in
accordance with law.
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