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.