Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 BAIL APPL. NO. 8859 OF 2021 CRIME NO.1199/2021 OF INFOPARK POLICE STATION PETITIONER/ACCUSED: ABRAHAM ANTONY, AGED 25 YEARS S/O.ANTONY, PAVARATTYKARAN HOUSE, KUNNANGADI KARA, VELUTHOOR P.O., THRISSUR-680 651. BY ADVS. P.VIJAYA BHANU (SR.) SRUTHY N. BHAT M.REVIKRISHNAN AJEESH K.SASI MITHA SUDHINDRAN POOJA PANKAJ RAHUL SUNIL P.M.RAFIQ
RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. SRI C.N. PRABHAKARAN (SR.PP) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.11.2021, ALONG WITH Bail Appl..9142/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Bail Appl. Nos.8859 & 9142 of 2021] 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943 BAIL APPL. NO. 9142 OF 2021 AGAINST THE ORDER IN CRMC 2485/2021 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM CRIME NO.2645/2021 OF KOTHAMANGALAM POLICE STATION PETITIONER/ACCUSED: ABRAHAM ANTONY AGED 25 YEARS S/O. ANTONY, PAVARATTYKARAN HOUSE, KUNNANGADI KARA, VELUTHUR P.O, THRISSUR DISTRICT. BY ADVS. P.VIJAYA BHANU (SR.) M.REVIKRISHNAN MITHA SUDHINDRAN AJEESH K.SASI POOJA PANKAJ SRUTHY N. BHAT RAHUL SUNIL P.M.RAFIQ RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 BY SMT. SEETHA S., SR. PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.11.2021, ALONG WITH Bail Appl..8859/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Bail Appl. Nos.8859 & 9142 of 2021] 3
ORDER
[Bail Appl. Nos.8859/2021, 9142/2021] These applications are for regular bail.
2. The petitioner in both these bail applications is
one and the same person. He is accused in Crime No.1199/2021 of Inforpark Police station, regarding which Bail Application No.8859/2021 is filed and also the accused in Crime No.2645/2021 of Kothamangalam police station, regarding which Bail Application No.9142/2021 is filed.
3. The allegations in Crime No.1199/2021 of Infopark police station and Crime No.2645/2021 of Kothamangalam
police station are practically one and the same. The petitioner is alleged to have entered into a relationship with the de facto complainant and is alleged to have entered into sexual relationship with her in a flat within the local limits of Infopark police station and also in another flat within the local limits of Kothamanagalam police station. These relationships are stated to have been consented to by the de facto
complainant on the false pretext of marriage. Since the alleged occasions of sexual abuse have taken place within the limits of two police stations, on the same set of allegations,
Bail Appl. Nos.8859 & 9142 of 2021] 4 two crimes have been registered in the two different police stations indicated above. In crime No.1199/2021 of Infopak Police station petitioner was arrested and remanded on 22.10.2021. While in custody, his arrest was recorded in crime No.2645/2021 of Kothamangalam police station, on 05.11.2021.
4. Learned counsel appearing for the petitioner
submits that even going by the contents of the First Information Statement, the petitioner and the de facto complainant were in a relationship from 2018 till 2021. it is submitted that the complaint was filed only after the petitioner decided to get married in the month of June, 2021 and on coming to know that the marriage of the petitioner with another lady had been solemnized. It is submitted that both the petitioner and the de facto complainant are 25 years of age and they had got acquainted while working at Infopark. It is submitted that there was no promise to marry and at any rate, considering the long relationship, even if there was such a promise, it cannot be said that the promise was false even at inception, in which case, their relationship be only be termed as consensual sex between two adult persons for which there can be no criminal charge.
Bail Appl. Nos.8859 & 9142 of 2021] 5
5. Learned Public Prosecutor, on instructions, submits that there are large number of cases which are coming to the notice of the prosecuting agencies where people enter into relationships under false pretext of marriage and thereafter, one person withdraws from such
promise. It is submitted that consent for the purposes of Section 375 of the Indian Penal Code cannot be said to have been obtained properly in cases like these where the petitioner had entered into a sexual relationship with the de facto complainant on the false pretext of marriage. It is submitted that, the fact that the allegation of rape was made only after the petitioner got married to another lady, is really not a matter for consideration in these cases as in cases like these, the allegations will arise only after the marriage is
fixed with another person. Therefore, he submits that the question of delay etc., cannot be considered in these cases. He also submits that the question as to whether the promise of marriage was false at the inception or whether it was a breach of promise at a later stage is a matter for trial and cannot be gone into at this stage of bail. He therefore opposes the grant of bail to the petitioner in these cases. Bail Appl. Nos.8859 & 9142 of 2021] 6
6. Having regard to the facts and circumstances of
the case, I am of the view that the petitioner can be released on bail, especially, considering the fact that he has been in custody from 22.10.2021. Learned Public Prosecutor is right in submitting that the question as to whether consent was obtained on the promise of marriage which was false even at the time of inception or whether it was a breach of promise at a later point of time, is a matter for investigation and trial. The same cannot be conclusively determined in any manner at the stage when this Court is considering the grant of bail to
the accused person. However, this Court must strike a balance between the personal liberty of the petitioner/accused and the right of the prosecution to have a proper investigation into the allegations of rape which are definitely serious.
7. Having regard to the fact that the petitioner has been custody from in Crime No.1199/2021 of Inforpark police station from 22.10.2021 and considering the fact that his
arrest was also recorded in Crime No.2645/2021 of Kothamangalam police station and since the allegations in both these cases are identical, I am of the view that the continued detention of the petitioner is not necessary for a Bail Appl. Nos.8859 & 9142 of 2021] 7 proper investigation into the allegations against the petitioner. I am therefore inclined to grant bail to the petitioner subject to strict conditions to ensure that he does not interfere with the investigation in any manner. Accordingly, these applications are allowed. The petitioner shall be released on bail in Crime No.1199/2021 of Infopark police station subject to the following conditions:-
(i) The petitioner shall execute bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like-sum to the satisfaction of the jurisdictional court;
(ii) Petitioner shall appear before the investigating
officer in Crime No.1199/2021 of Infopark Police station on every Saturday before 04.00 pm until 31.01.2022 and thereafter, he shall appear as and when called upon to do so;
(iii) The petitioner shall not attempt to interfere with the investigation, influence or intimidate the victim or any witness in Crime No.1199/2021 of Infopark police station;
(iv) The petitioner shall surrender his passport before
the jurisdictional court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release Bail Appl. Nos.8859 & 9142 of 2021] 8 on bail;
(v) The petitioner shall not involve in any other crime while on bail.
If any of the aforesaid conditions are violated, the investigating officer in Crime No.1199/2021 of Infopark police station may file an application before the jurisdictional court, for cancellation of bail. The petitioner shall also be released on bail in Crime No.2645 of Kothamangalam police station subject to the following conditions:-
(i) The petitioner shall execute bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like-sum to the satisfaction of the jurisdictional court;
(ii) Petitioner shall appear before the investigating
officer in Crime No.2645 of Kothamangalam Police station on every Saturday before 04.00 pm until 31.01.2022 and thereafter, he shall appear as and when called upon to do so;
(iii) The petitioner shall not attempt to interfere with the investigation, influence or intimidate the victim or any witness in Crime No.2645 of Kothamangalam police station; Bail Appl. Nos.8859 & 9142 of 2021] 9
(iv) The petitioner shall surrender his passport before
the jurisdictional court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release on bail;
(v) The petitioner shall not involve in any other crime
while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.2645 of Kothamangalam police station may file an application before the jurisdictional court, for cancellation of bail. sd/- GOPINATH P. JUDGE ajt