Ker HC | Court grants bail subject to conditions to safeguard prosecutrix-victim and witnesses

Kerala High Court: Alexander Thomas, J. disposed a bail application and granted bail by providing various requisite conditions on the petitioner for the safeguard of the victim.

In the present case, the petitioner has been accused of being the sole accused wherein a case has been registered under Sections 450 and 376 of the Indian Penal Code, 1860 (‘IPC’). It has been alleged by the prosecution, being a divorced lady with an 11-year-old minor child that the accused-petitioner had promised her that he would find a tenant for her house which she was looking to let out on rent. It was reported that on the 19-05-2019, the accused-petitioner had invited the lady at a house and to her dismay; the petitioner was alone and indulged her in sexual intercourse.

Counsel representing the accused-petitioner, Sergi Joseph Thomas, submitted that the prosecution in her FI statement had mentioned that she was having an affair with the accused-petitioner and thus indulging in sexual intercourse was based on consent and not forceful. The counsel also submitted that there was a considerable amount of unexplained delay in filing the case since the date of the incident thus leading to fabrication of factual circumstances.

The Public Prosecutor representing the State, Saigi Jacob Palatty contended that if the petitioner is let out on bail, there will be a possibility of the petitioner intimidating the witnesses and the lady as well. 

The present Bench, upon perusal of the facts and circumstances of the case, stated that the petitioner had already served 34 days detention and there has been an unexplained delay in setting the complaint into motion from the victim lady’s end. The Court noted that merely because the investigation is pending the accused-petitioner cannot be denied bail. However, since there exists a possibility of the accused-petitioner influencing the witness or the lady, the court granted bail to the petitioner and imposed various conditions on the accused-petitioner. The Court directed that:

“i. The petitioner shall appear before the Investigating Officer on every 2nd and 4th Saturdays, at any time between 10 am and 1 pm, for a further period of 3 months or till final report is filed, whichever is earlier.

ii. He shall not intimidate or attempt to influence the lady victim, witnesses; nor shall he tamper with the evidence.

iii. He shall not commit any offence while on bail. 

iv. The petitioner shall not visit or go anywhere near to the residence of the lady defacto complainant. 

v. The petitioner shall not reside or enter anywhere within the territorial limits of the Police Station where the lady defacto complainant is residing until the conclusion of investigating process, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyer/advocate concerned. If the petitioner has any emergent personal need to visit the said area, he may do so but only with the prior permission of the investigating officer concerned.”[Vineesh v. State of Kerala, 2019 SCC OnLine Ker 2408, decided on 29-07-2019]

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