Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE SHIRCY V. WEDNESDAY, THE 23RD DAY OF FEBRUARY 2022 / 4TH PHALGUNA, 1943 BAIL APPL. NO. 137 OF 2022 CRIME NO. 108 OF 2021 OF KIDANGOOR POLICE STATION, KOTTAYAM PETITIONER: ADHARSH R., AGED 26 YEARS S/O.RAVINDRANATHAN, AMRITHA, P.O.KAVASSERI, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV P.JAYARAM RESPONDENT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 2 XX XX BY ADVS. M.SHAJNA K.M.FIROZ(K/1714/2000) OTHER PRESENT: SHEEBA.G- P.P THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON 23.02.2022 PASSED THE FOLLOWING:
ORDER
Dated this the 23rd Day of February, 2022 This successive application for bail has been filed by the petitioner in connection with Crime No. 108 of 2021 of Kidangoor Police Station registered for the offences punishable under Sections 376, 376(2)(n) of Indian Penal Code.
2. Briefly stated the allegations in the FIR are as follows: The defacto complainant and the petitioner were class
mates and while so, they fell in love with each other. Thereafter on 19.11.2015 at about 10.30 a.m the petitioner came to the house of the defacto complainant and under the guise of promise to marry, committed rape on her. Thereafter on 10.8.2017 and 13.9.2017 he had taken her to a lodge at Guruvayoor and committed rape on her. Though he promised to marry her, no steps were taken by him to solemnize the marriage and then she approached the Woman Cell at Kottayam with a complaint. There he appeared and agreed to
register their marriage on 9.1.2021. Thereafter he has postponed the marriage to 8.2.2021. But thereafter he absconded and his father then filed a complaint before Alathur police for man missing and FIR was registered as Crime No. 60 of 2021 under Section 57 of the Kerala Police Act. His intention was to commit rape on her and not to marry her, is the version of the prosecution.
3. The learned counsel for the petitioner submits that
false allegations have been leveled against this petitioner by the defacto complainant without any bona fides and that is revealed from her first complaint before the police.
4. The learned counsel appearing for the defafto
complainant, the 2nd respondent, opposed the application contending that she was taken to a lodge at Guruvayoor during the month of November, 2017 by the petitioner and against her wish, that too by exerting force on her, committed rape under the guise of promise to marry and thereafter also continued the same and committed rape on her on various days. Thereafter he deviated from the promise to marry her though her family had made all arrangements to solemnize the marriage with the petitioner. Hence, this petition for pre-arrest bail is only to be dismissed.
5. The learned Public Prosecutor has also opposed the
application contending that the petitioner was absconding and so he could not be apprehended even after the disposal of his earlier application and hence he is not entitled to get pre-arrest so as prevent the investigating agency from having custodial interrogation.
6. The defacto complainant is an educated lady aged 25 years. The petitioner and the defacto complainant were class mates. The allegation of rape span over a period between November, 2017 till the filing of the complaint. It is pertinent to note that the defacto complainant has filed a complaint before the Circle, Inspector, Vanitha Cell, Kottayam on 20.7.2020. The copy of the complaint was forwarded to Kidangoor Police Station. In the complaint, it was specifically
stated that both of them were in love for the last so many years and he had promised to marry her and they had sexual relationship. Further it is stated that they have a short stay in a room in a lodge at Guruvayoor twice and the petitioner had assured to marry her. But now he lost his interest and he is not having any contacts with her. Immediately on receipt of this complaint, FIR was not seen registered by the police. The FIR was registered only on 09.02.2021 on the basis of her FIS. In the FIS she has stated that she had sexual relationship with him as he promised to marry her and he used to visit her till
2018. In the first complaint as well in the FIS she had no case that he had committed rape on her. But what is revealed from her FIS dated 08.02.2021 is that he had consensual relationship with her.
7. A perusal of the FIS would prima facie indicates that the essential ingredients so as to attract an offence punishable under Section 376 of Indian Penal Code are conspicuously
absent. But what is revealed is that they had sex with each other and that was only a consensual sexual relationship and later the parents of the parties had also intervened and had made arrangements for their marriage. The marriage was not solemnized for various reasons and in fact his father had filed a complaint before the police on 06.02.2021 alleging that the petitioner, his 2nd son was found missing and thus a case was registered for man missing. From the records it is revealed that there was some love relationship between the parties and they had even sex with each other and they decided to marry but for some reason or other, the marriage was not solemnized.
8. As this application is one for anticipatory bail on the
allegation that he had committed rape on the defacto complainant repeatedly, the prime question to be considered is whether custodial interrogation is required as submitted by the learned Public Prosecutor. Of course, the earlier application was dismissed by this court and at that time her first complaint before the police dated 20.07.2020 was not available on records. But now the materials on record would indicate that an effective investigation of the case is quite possible even without custodial interrogation of the petitioner. Whether the promise to marry was given by him with no intention to honour it and whether consent to have sex was obtained on the basis of the false promise to marry and thus cheated her, are matters for determination in the case, at a later stage. In short, I am inclined to consider this application favorably as the investigating agency could proceed with the investigation of the case even without the custodial interrogation of the petitioner. Therefore, this application is disposed of directing the petitioner to surrender before the Investigating Officer on 04.03.2022 at 10.30 a.m.. Upon his surrender, after interrogation and recording his arrest, he shall be released on bail subject to the following conditions:
(i) He shall execute a bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like sum each to the satisfaction of the Investigating Officer.
(ii) He shall appear for interrogation before the Investigating Officer as and when required by him in writing. He shall co- operate with the investigation of the case.
(iii) He shall not directly or indirectly, make any inducement,
threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(iv) He shall not commit any offence while on bail.
In case of violation of any of the above conditions, the jurisdictional court is empowered to cancel the bail in accordance with the law. Sd/- SHIRCY V JUDGE sb