The court held that bail can be granted under Section 439 of the CrPC despite serious allegations if further detention is not deemed necessary.

ORDER

This is an application seeking regular bail filed under Section

439 of the Code of Criminal Procedure , 1973.

2. Petitioner is the accused in Crime No.1604/2022 of Thiruvalla Police Station, Pathanamthitta District. The offences alleged against the petitioner are under Sections 366 and 376(2)(n) of the Indian Penal Code . 1860 and Section 5 (j)(ii)(l) r/w Section 6 of the Protection of Children from Sexual Offences, Act, 2012.

3. According to the prosecution, the accused had abducted the minor victim, who is a native of West Bengal and committed penetrative sexual assault on her, as a result of which the victim became pregnant and thus the accused committed the offences alleged.

4. Sri.N.Anand, learned Counsel for the petitioner contended that the prosecution allegations are false and the petitioner had actually married the victim in accordance with Mohemmedan law on 14.03.2021 and that they had been living together as husband and wife. It was further submitted that on an earlier occasion, petitioner had approached this Court through B.A.No.8216/2022 and by judgment dated 18.11.2022, this Court had dismissed the bail application. Petitioner was arrested on 01.09.2022. However, subsequently, final report in the instant case was filed on 01.12.2022 and that taking note of the peculiar circumstances arising in this case, petitioner ought to be released on bail.

5. Smt.M.K.Pushpalatha, learned Public Prosecutor opposed the grant of bail and contended that the petitioner is alleged to have married the minor victim, which marriage is not legally permissible as held by this Court in the judgment rendered in the earlier bail application filed by the petitioner, which is reported in Khaledur Rahman v. State of Kerala [ 2022 (6) KLT 707 ]. It was further submitted that, if the petitioner is released on bail there is every chance that he may abscond and remain aloof from prosecution and therefore, taking note of the said circumstances bail ought not to be granted.

6. I have considered the rival contentions.

7. Though this court had in B.A.No.8216/2022 rejected the application for regular bail filed by the petitioner earlier, having regard to the nature of allegations, and the peculiar circumstances arising in the case, apart from the filing of final report on 01.12.2022, I am of the view that further detention of the petitioner is not essential. However, apprehension of the learned Public Prosecutor cannot be ignored. Accordingly, strict conditions ought to be imposed.

Hence, this application is allowed on the following conditions:-

(a) Petitioner shall be released on bail on him executing bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. One of the sureties must be a local surety.

(b) Petitioner shall co-operate with the trial of the case.

(c) Petitioner shall not commit any similar offences while he is on bail.

(e) Petitioner shall not leave Kerala or India without the permission of the Court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.

BECHU KURIAN THOMAS JUDGE jm/

APPENDIX OF BAIL APPL. 10559/2022 PETITIONER ANNEXURES Annexure-I TRUE COPY OF CRIME NO. 1604 OF 2022 BEFORE THE THIRUVALLA POLICE STATION Annexure-II TRUE COPY OF THE ORDER DATED 30.09.2022 PASSED BY ADDL. SESSIONS JUDGE-I, SPECIAL COURT, PATHANAMTHITTA IN CRIMINAL M.P NO.

4174 OF 2022 Annexure-III TRUE COPY OF THE ORDER DATED 18.11.2022 PASSED BY THIS HON'BLE COURT IN B.A. NO. 8216 OF 2022