Monday, 14 December 2020

Whether lower court must record reasons if it is having any difficulty in complying order of high court?

 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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