Bail is the rule and jail is the exception; conditions imposed to ensure cooperation with the investigation and prevent absconding.

ORDER :

This bail application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

2. Petitioners are the 1^st and 3^rd accused in Crime No.173/2025 of Thrikkunnappuzha Police Station, Alappuzha. Now the case is transferred to Alappuzha North Police Station and the case is pending as Crime No.519/2025 The above case is registered against the petitioners alleging offences punishable under Section 376(2)(n), 323, 324, 506 and 34 of the Indian Penal Code.

3. The prosecution case is that the 1^st petitioner/1st accused committed rape on the victim and the 2^nd petitioner who is the 3^rd accused threatened the victim that the video of the victim will be shared in social media. It is also alleged that the 1^st petitioner presented the victim to the 2^nd accused and the 2^nd accused also committed rape on her. Hence, it is alleged that the accused committed the offence.

4. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor.

5. The counsel for the petitioners submitted that, even if the entire allegations are accepted, the offence of rape is not committed. The counsel submitted that, even according to the defacto complainant, the 1^st petitioner and the defacto complainant were travelling together at different places and also stayed at different places. It is submitted that it is only consensual sexual intercourse. The counsel also submitted that the petitioners are ready to abide any condition imposed by this Court, if this Court grant them bail.

6. The Public Prosecutor opposed the bail application.

7. This Court perused the First Information Statement (FIS) given by the defacto complainant. According to the petitioner, she is a divorcee. She met with 1^st accused Shanavaz and started business with the above Shanavaz. It is stated that on 22.02.2021, the 1^st accused took her to a hotel and there was some forceful sexual intercourse by him. Thereafter, it is stated that, the 1^st accused and the victim traveled at different places and there was sexual intercourse between them from a lodge at Attakulangara, Trivandrum, a lodge at Alappuzha and different lodges at Ernakulam, Mumbai, Vashi, Dlehi etc. In March 2021, it is alleged that the victim was presented to the 2^nd accused and on that day, the 2^nd accused had sexual intercourse with the victim. Thereafter, also as per the FIS, the relationship between the victim and 1^st accused continued. The complaint is filed on 2025. I do not want to make any further opinion about the same. Considering the facts and circumstances of the case, I think, the petitioners can be released on bail after imposing stringent conditions. There can be a direction to the petitioners to appear before the Investigating Officer for two days continuously from 10:00 a.m to 04:00 pm., thereafter, if arrest is recorded, there can be a direction to the Investigating Officer to release the petitioners on bail after imposing stringent conditions.

8. 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.

9. Recently the Apex Court in Siddharth v State of Uttar Pradesh and Another [2021(5)KHC 353] considered the point in detail. The relevant paragraph of the above judgment is extracted hereunder.

“12. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandat