Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945 BAIL APPL. NO. 5341 OF 2023 Crime No.347/2023 of Cherpulassery Police Station, Palakkad PETITIONER/ACCUSED: SUDEER AGED 52 YEARS S/O T.H ABDUL KAREEM, THUKALIL HOUSE, MUDIKKAL P O, PALAKKATTUTHAZHAM, PERUMBAVOOR, PIN - 683547 BY ADVS. K.BIJU K.R.SAJITH RESPONDENT/STATE: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER CHERPLASSERY POLICE STATION, PALAKKAD, PIN - 679503 OTHER PRESENT: ADV. SREEJA V - SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
This is an application filed under Section 438 of the Code of Criminal Procedure seeking anticipatory bail.
2. The petitioner is the accused in Crime No.347/2023 of Cherpulassery Police Station, Palakkad District. The offence alleged against the petitioner is punishable under Sections 376(2)
(n) of the Indian Penal Code.
3. The prosecution case is that the petitioner had
committed penetrative sexual assaults upon the victim by making a promise to marry her, thereby committing the offence. The crime was registered in such circumstances, and as the petitioner apprehends arrest in connection with the investigation of the said case, this application for anticipatory bail is submitted.
4. Heard, Sri. K.Biju, the learned counsel appearing for the petitioner and Smt.V.Sreeja, the learned Public Prosecutor, appearing for the State.
5. The learned counsel for the petitioner submits that the
petitioner is innocent of all allegations. It is pointed out that the sexual intercourse with the petitioner and the defacto complainant was based on mutual consent. The petitioner, as well as the defacto complainant, were already married. As far as the defacto complainant is concerned, she also has three children. In such circumstances, the offence under Section 376(2)(n) of the IPC would not be attracted based on the allegation of sexual intercourse on the promise of marriage, as the question of a legal marriage between the parties does not arise.
6. On the other hand, the learned Public Prosecutor
opposes the said application by pointing out that this is a case in which, by making a false promise of marriage, the petitioner allegedly committed rape of the victim and also took away ten sovereigns of gold from the defacto complainant. The matter is under investigation, and therefore, dismissal of the application was sought.
7. I have gone through the records. From the statement
given by the victim, it is evident that she was a married lady with three children. According to her, she was abandoned by her husband, and the petitioner made an offer to marry her, and thereafter they lived as husband and wife in a quarters at Chalavara. A reading of the said statement would give some indication that the sexual intercourse between the parties was based on mutual consent. The question whether the consent of the said victim was obtained by making a false promise of marriage or not, is a matter to be investigated. However, as it is an admitted case that the victim was already married, I find some force in the contention of the learned counsel for the petitioner. Anyhow, as the matter is now at the investigation stage, I do not intend to adjudicate upon the said issue.
8. In the facts and circumstances of the case, I find that the interest of justice will be served if the cooperation of the petitioner with the investigation is ensured. The custodial interrogation of the petitioner appears to be not necessary in the
facts and circumstances referred to above.
Accordingly, this application is disposed of on the following conditions: i) The petitioner shall surrender before the Investigating Officer, within a period of three weeks from today, for subjecting himself to interrogation. ii) After interrogation, the petitioner shall be released on bail on the very same day of surrender upon the petitioner executing a bond for Rs 1,00,000/- (Rupees One Lakh only) with two sureties each for the like sum, to the satisfaction of the Investigating Officer iii) The petitioner shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for the purpose of recovery, if any, as and when demanded.
iv) The petitioner shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m every Saturday until the filing of the final report. v) The petitioner shall also appear before the Investigating Officer as and when required. vi) The petitioner shall not commit any offence of similar nature while on bail. vii) The petitioner shall not make any attempt to contact
any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. viii) The petitioner shall not leave India without the permission of the Jurisdictional Court. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. Sd/- ZIYAD RAHMAN A.A JUDGE rpk