Kerala High Court
Shanil vs State Of Kerala on 6 July, 2020
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942
Bail Appl..No.3798 OF 2020
CRIME NO.40/2020 OF Kasaba Police Station , Kozhikode
PETITIONER:
SHANIL
AGED 33 YEARS
S/O. ABDUL AZEEZ, SHANIL HOUSE, AJANUR, THEKKEPURAM P
O, MANIKOTH, KASARAGOD-671315.
671315
BY ADVS.
SRI.RAGHUL SUDHEESH
SRI.K.J.GLAXON
SMT.J.LAKSHMI
SRI.V.I.RAHUL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN-682031.
682031
2 SUB INSPECTOR OF POLICE
KASABA POLICE STATION, KOZHIKODE-673004.
SRI T. R RENJITH PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.3798 OF 2020 2
ORDER
This application seeking pre-arrest bail has been preferred by the accused in Crime No.40 of 2020 of the Kasaba Police station, Kozhikode which was earlier registered as Crime No.9 of 2020 of Ambalathara Police Station. In the aforesaid crime, he is accused of having committed offence punishable under Section 376(1) of the Indian Penal Code.
2. This application is taken up and heard through Videoconferencing.
3. The informant is a lady aged 29 years and in her complaint dated 10.1.2020, she alleges that she contacted the petitioner through Facebook and started chatting with him. Their friendship grew and the petitioner is alleged to have promised that he would marry her. She says that they were in a relationship for almost 1½ years. It is alleged that on 1.12.2019, the informant was asked to come to Kozhikode to purchase some clothes for their marriage. She obliged and she alleges that she was taken to a lodge by name 'Calicut Inn'. She alleges that they stayed together in the said room Bail Appl..No.3798 OF 2020 3 and by assuring that he would marry her, subjected her to penetrative sexual abuse. The petitioner also took some photographs and later started threatening her with the same. She further alleges that the petitioner obtained a sum of Rs.40,000/- and a gold chain weighing about one sovereigns and the same was not returned. Stating these allegations, a complaint was lodged and the crime was registered.
4. Sri. Raghul Sudheesh, the learned counsel appearing for the petitioner submitted that the petitioner is innocent. He would contend that the petitioner herein was working abroad and it was then that he got in touch with the lady through Facebook. He contends that after he had lost his job, the de facto complainant helped him financially. He further points out that the de facto complainant is a lady aged 29 years and is having the capacity to discern right from wrong. Even if there was a relationship, the same was consensual, contends the learned counsel. Relying on the decision of the Apex court in Dr. Dhruvaram Muralidhar Sonar v. State of Maharashtra & Ors. [2019 (1) KHC 403] and also that in Pramod Suryabhan Pawar v. State of Maharashtra and another [(2019) 9 SCC 608], it is submitted that the offence under Section 376 of the IPC will not be made out against the petitioner.
Bail Appl..No.3798 OF 2020 4
5. The learned Public Prosecutor on instructions submits that the petitioner had snapped explicit photos of the victim and had threatened her that he would circulate the same. According to the learned Public Prosecutor, the allegations are extremely grave in nature.
6. At the time of consideration of bail applications, Courts are not expected to go into the minute details of the allegations nor discuss the merits and demerits of the materials collected against the accused lest it causes prejudice either of the parties. For the limited purpose of ascertaining as to whether the petitioner has made out a prima facie case for pre-arrest bail, I have meticulously scanned the materials. I find from the statement that even according to the de facto complainant, she was in a relationship with the petitioner for a period spanning years. The Apex Court in Dr. Dhruvram (supra) has held that there is a clear distinction between rape and consensual sex. The question to be considered in such cases is whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust. The former is not rape but the latter will fall within the ambit of cheating and deception. It has also been held that there is a subtle distinction between mere breach of a promise and not fulfilling a false promise. If Bail Appl..No.3798 OF 2020 5 the materials prima facie suggest that the prosecutrix agreed to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do, such cases will not fall within the ambit of rape and will have to be considered differently. In other words, if the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, then such consent cannot be said to be given under a misconception of fact. (See Uday v. State of Karnataka [(2003) 4 SCC 46]). Having considered the facts and circumstances of the instant case in all its perspectives, I am of the considered opinion that the custodial interrogation of the petitioner is not necessitous for an effective investigation.
In the result, this application will stand allowed. The petitioner shall appear before the Investigating 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 his executing a bond for a sum of Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum. The above order shall be subject to the following Bail Appl..No.3798 OF 2020 6 conditions:
i) The petitioner shall permit himself to be examined by a Medical Officer as required under Section 53A of the Cr.P.C and shall undergo such other tests, including potency test, as and when directed to do so.
ii) The petitioner shall cooperate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for two months or till the final report is filed, whichever is earlier.
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/ her from disclosing such facts to the court or to any police officer.
iii) He 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 PS