Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN THURSDAY, THE31T DAY OF OCTOBER20139TH KARTHIKA, 1935 Bail Appl..No. 6947 of 2013 () ------------------------------- CRIME NO. 632/2013 OF PAYYOLI POLICE STATION, KANNUR DISTRICT ------------------ PETITIONER/ACCUSED : ------------------------------------ SAMEER S/O. MOIDEEN KUTTY, AGED24YEARS, KOROTH VADAKKEKUNI HOUSE TRIPANGOTTUR AMSOM, PALUR DESOM, KOYILANDY TALUK. BY ADV. SRI.CIBI THOMAS RESPONDENTS/COMPLAINANT/STATE: -------------------------------------------------------- 1. SUB INSPECTOR OF POLICE PAYYOLI POLICE STATION-673 001.
2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. *ADDL. 3RD RESPONDENT IMPLEADED *3. ANSILA, D/O. MOIDEEN KOYASSANKANDY (HOUSE) PAYYOLI AMSOM DESOM, KOYILANDY TALUK. *ADDL. 3RD RESPONDENT IMPLEADED AS PER ORDER
DATED3110/13 IN CRL.M.A. NO. 8653/13 IN BA NO. 6947/13. R1 & R2 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN ADDL.R3 BY ADVS. SRI.MOHANAN V.T.K. SRI.K.NOORUDHEEN THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON3110-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn P.BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6947 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of October, 2013 ORDER
The petitioner is the sole accused in Crime No.632 of 2013 of Payyoli Police station who is alleged to have committed the offence punishable under Section 376 of IPC.
2. The allegation against the petitioner is that he, having lured and enticed away the victim to have a divorce from her husband and then he would marry her, managed to live with her and against her consent and will, he committed sexual assault on her.
3. The petitioner would say that the allegations are totally false and without any basis. He says that if at all there was any physical relationship between the two, it was with the consent and willingness of the victim and there is no forced sexual assault by the petitioner. In aid of his contention, he refers to Annexure III, FIR based on a complaint filed by the victim, a crime has been registered B.A. No. 6947/2013 -2- against the petitioner as on 17.08.2013 with respect to an incident which took place on 13.08.2013. Drawing attention to the allegations in the present complaint, it is pointed out that the victim complains of forced sexual assault from 19.06.2013 onwards. If as a matter of fact, according to the petitioner, if the allegation in the present complaint was true, that should have normally found a place in the complaint which was filed earlier resulting in Annexure III FIR being registered. That there was no such complaint then speak volumes of the fact that if at all there was any physical relationship, it was with the consent of the victim. The petitioner therefore seeks pre-arrest bail.
4. The victim has chosen to get herself impleaded and she is represented by a counsel. The learned counsel appearing for the victim pointed out that the parties had entered into an agreement whereby, the victim was given to understand that once she obtained divorce from her husband, the petitioner would marry her. Though they were B.A. No. 6947/2013 -3- living together, the victim was not amenable to the sexual advances made by the petitioner and the complaint now made is that against her wish, desire and consent, she was forced to have sex with him. After obtaining divorce, it seems that the petitioner backtracked. It is therefore pointed out that there was no consent for the physical relationship.
5. The learned Public Prosecutor only pointed out that the investigation is going on.
6. After having heard the learned counsel for the petitioner and the learned counsel for the victim and the learned Public Prosecutor and having perused the records, there seems to be considerable force in the submissions made by the learned counsel for the petitioner that the allegation cannot be taken on the face value. The agreement produced by the victim along with her impleading petition shows that there was an agreement between the two to live together and the agreement shows B.A. No. 6947/2013 -4- that on getting divorce, the petitioner would marry her. It must be remembered that the victim was already married lady and has two children. She knew the consequences of getting married and having sex before marriage also. As rightly pointed out by the learned counsel for the petitioner, if there was a forced sexual assault as on 19.06.2013 and subsequent days as complained now by the victim, surely and certainly that would have found a place in the complaint which resulted in the registration of crime as evidenced by Annexure III. That the said complaint is totally silent about the forced sexual assault. This fact goes a long way in creating a strong suspicion regarding the allegation made against the petitioner. It may not be appropriate at this stage for this Court to go further into the allegations and to determine its veracity. Suffice to say that considering the totality of the circumstances, there seems to be some force in the grievance voiced by the petitioner. B.A. No. 6947/2013 -5- The petition is allowed as follows:
1. The petitioner shall surrender before the Investigating Officer on or before 07.11.2013, who, after interrogation, shall produce him before the JFCM court concerned, which court, on an application for bail being moved by the petitioner shall release him on bail on his executing a bond for a sum of `15,000/- (Rupees Fifteen Thousand only) with two solvent sureties for the like sum each to the satisfaction of the said court. 2) The court shall ensure the identity of the sureties and the veracity of the tax receipts, before granting bail. 3) The petitioner shall appear before the Investigating Officer on every Wednesday between 9.00 am and 10.00 am until further orders. 4) The petitioner shall not tamper or attempt to tamper with the evidence and influence or try to B.A. No. 6947/2013 -6- influence the witnesses. 5) If any of the conditions is violated, bail granted to the petitioner shall stand cancelled and the court concerned may take such steps as are available to it in accordance with law. P.BHAVADASAN JUDGE ds