Muhammed Rafi vs State Of Kerala

Gopinath P, J

This is an application for regular bail.

Petitioner is the accused in Crime No.96/1999 of Vellarikundu police station, Kasargode district, alleging commission of offences under Sections 366(A) & 376 r/w. Section 34 of the Indian Penal Code.

The allegation against the petitioner is that in the month of September, 1998, the petitioner along with two others came in an autorickshaw and convinced the victim that her mother is in hospital and took her in the autorickshaw to a secluded place and committed rape on her. The autorickshaw driver was arrayed as the first accused , the petitioner as the 2nd accused and one other person named Rejikumar was arrayed as the 3rd accused. The petitioner absconded and the charge against him was split up. The case is now pending as S.C. No.436/2021 on the file of the Additional Sessions Court-I, Kasargod. Trial proceeded against the original accused Nos.1 and 3. The autorickshaw driver, the 1st accused was acquitted by the trial court and the original 3rd accused-Rejikumar was convicted. On appeal, this Court found in favour of Rejikumar and acquitted him. The judgment is placed on record as Annexure-I.

It is submitted by the learned Public Prosecutor that the petitioner had jumped bail thrice and had absconded, resulting in the situation where a trial in respect of a crime which was registered in 1999 with regard to the incident took place in the year 1998 could not be concluded against the petitioner. Learned counsel for the petitioner submits that the petitioner had gone abroad in connection with his employment and that considering the findings of this Court in Annexure-1 judgment, the chances of a successful prosecution of the petitioner is remote. He also submits that stringent conditions can be imposed on the petitioner to ensure that he faces trial. I am not convinced that it is proper for this Court to determine at this stage that the chances of conviction of the petitioner is remote in the light of the findings in Annexure-1 judgment. However, I am of the opinion that the petitioner can be released on bail subject to strict conditions to ensure that he faces trial, especially taking into account the fact that he has been in custody since 28.07.2021. I am inclined to grant bail despite the strong objection of the learned Public Prosecutor and despite noticing the fact that petitioner could be arrested only after a red corner notice was issued against him. Accordingly, this application for regular bail is allowed and it is directed that the petitioner shall be released on bail subject to the following conditions:-

(i) The petitioner shall execute bond for a sum of Rs.2,00,000/- (Rupees two lakhs only) with two solvent sureties for the like sum to the satisfaction of the Additional Sessions Court-I, Kasargod;

(ii) Petitioner shall make a cash security deposit of Rs.1,00,000/- (Rupees one lakh only) before the court of the Additional Sessions Judge-I, Kasargod;

(iii) Petitioner shall appear before the Station House Officer, Vellarikundu Police Station on every Saturday (following release) at 11 am until further orders;

(iv) Petitioner shall appear on all posting dates of S.C. No.436/2021 (LPC No.3/2019) without fail.

(v) The petitioner shall not attempt to influence or intimidate the victim or any witness in S.C. No.436/2021 on the file of the Additional Sessions Court-I, Kasargod.

(vi) If the petitioner is in possession of his passport, the same shall be surrendered before the Additional Sessions Court-I, Kasargod within seven days of his release on bail. If the petitioner is not in possession of his passport, he shall execute an affidavit to that effect and file the same before the said court within the time specified above;

(vii) The petitioner shall not involve in any other crime while on bail.

If any of the aforesaid conditions are violated, the Station House Officer, Vellarikundu Police Station, may file an application before the Additional Sessions Court-I, Kasargod, for cancellation of bail.