Kerala High Court
Unknown vs Present on 29 May, 2018
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 29TH DAY OF MAY 2018 / 8TH JYAISHTA, 1940
Bail Appl..No. 2495 of 2018
CRIME NO. 114/2018 OF NADAPURAM POLICE STATION , KOZHIKODE
PETITIONER(S)
1 SHAJI C.H,
48/18 YEARS,S/O SREEDHARAN.C.H,CHALIL HOUSE,
NUT STREET POST,VATAKARA,PIN-673101.
BY ADVS.SRI.MANJERI SUNDERRAJ
SRI.A.SANOOJ
RESPONDENT(S):
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM. 680 031 (REPRESENTING STATION HOUSE
OFFICER,NADAPURAM POLICE STATION, KOZHIKODE DISTRICT)
R BY PUBLIC PROSECUTOR SRI.AJITH MURALI
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29-05-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AD
RAJA VIJAYARAGHAVAN V, J
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B.A No.2495 of 2018
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Dated this the 29th day of May, 2018
ORDER
1.This application is filed under Section 438 of the Code of Criminal Procedure.
2.The applicant herein is arrayed as the accused in Crime No.114 of 2018 of the Nadapuram Police Station registered under Sections 376, 406 and 506(i) of the IPC.
3.According to the de facto complainant, she joined the Purameri Maveli store in the year 2012 as a daily wage worker. During the said period, the applicant herein was working as the Manager. They became close and it is alleged that by giving a false promise of marriage, the applicant herein persuaded the de facto complainant to have a sexual relationship with him. The first incident was in the month of May, 2016 and the last was on 8.3.2018. During this period he also persuaded the victim to hand over a sum of Rs.2 lakhs. Later, when the applicant reneged from his promise and refused to marry her, she approached the police and got the crime registered on 10.03.2018.
4.The learned counsel appearing for the applicant submitted B.A No.2495 of 2018 2 that the entire story is cooked up. The applicant is a bachelor and the relationship, if any, between the parties was consensual.
5.The learned Public Prosecutor has opposed the prayer and submitted that the allegations are grave.
6.I have considered the submissions advanced and have gone through the materials on record.
7.The de facto complainant, a widow and the mother of a 11 year child, has raised very grave allegations against the applicant. When the applicant asserts that the relationship was consensual, the de facto complainant asserts otherwise. Consent for the purpose of Section 375 of the IPC means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. In other words, it requires voluntary participation after the exercise of intelligence based on the knowledge of the significance and moral quality of the act and after having fully exercised the choice between resistance and assent. Whether there was a consent or not has to be ascertained only on an evaluation of all the relevant circumstances. A woman can be held to have given consent only if she has B.A No.2495 of 2018 3 freely agreed to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner in which she wanted. Consent may be express or implied, coerced or misguided or obtained willingly or through deceit. There is a clear distinction between rape and a consensual act and in a case like this, this Court will have to carefully examine whether a promise has been made to satisfy his lust or whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. It is by now settled that the acknowledged consensual physical relationship between two willing adults would not constitute an offence under Section 376 of the IPC, especially, when the victim was a major on the date of occurrence.
8.Having regard to all the relevant aspects, the nature and gravity of the allegations, the materials in support thereof, the antecedents of the applicant and other facts and circumstance, I am of the view that custodial interrogation of the applicant in a case of this nature is unwarranted. I am of the view that he can be granted pre-arrest bail by imposing appropriate condition so that the interest of the prosecution can also be safeguarded.
B.A No.2495 of 2018 4
i). The applicant shall appear before the investigation officer within ten days from today and shall undergo interrogation.
Thereafter, if he is proposed to be arrested, he shall be released on bail on he executing a bond for a sum of Rs.40,000/- (Rupees forty thousand only) with two solvent sureties each for the like sum.
ii)The applicant shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for one month or till final report is filed, whichever is earlier. He shall make himself available for any medical test that he may have to be subjected to.
iii)The applicant 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/ her from disclosing such facts to the court or to any police officer.
iv)The applicant shall not commit any similar offence while on bail.
In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.
Sd/-
RAJA VIJAYARAGHAVAN V, JUDGE AD //True Copy\\ P.A to Judge