Kerala High Court
Abdul Latheef vs State Of Kerala on 6 December, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941
Bail Appl..No.8507 OF 2019
CRIME NO.243/2019 OF Irinjalakuda Police Station , Thrissur
PETITIONER/S:
ABDUL LATHEEF
AGED 45 YEARS
VADAKKUMKARA VILLAGE, IRINJALAKKUDA, THRISSUR.
BY ADVS.
SRI.RAJESH VIJAYAN
SMT.SIKHA S.NAIR
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.8507 OF 2019 2
ALEXANDER THOMAS, J.
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B.A. No. 8507 of 2019
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Dated this the 6th day of December, 2019
ORDER
The petitioner herein has been arrayed as the sole accused in the instant Crime No.243/2019 of Irinjalakuda Police Station which has been registered for the offences punishable under Secs.450 and 376 of the IPC. The said case has been lodged on the basis of the FIS given by the lady defacto complainant on 20.03.2019 at about 2.20 p.m. in respect of the alleged incident which happened on 01.08.2018 at about 10.00 p.m.
2. The prosecution case in short is as disclosed in the abovesaid FIS is that the lady defacto complainant aged 35 years is a married and having 2 children and whose husband is working in a Gulf country and the petitioner/accused aged 45 years is a married man, having wife and children. That earlier, the lady was working as a house maid in a Gulf country and there, she got acquainted with a man and later, married that man who belongs to Islam religion and for the said marriage, she had changed the religion. Now, she is having 2 children aged 7 years and 2 ½ years. That the petitioner/accused and his wife, who are living in the immediate neighbourhood used to frequently help the lady defacto complainant in managing her house affairs and she had even lend some Bail Appl..No.8507 OF 2019 3 money to the petitioner's wife. Further that, earlier as requested by the lady defacto complainant's husband, she had send her nude photographs to her husband through her mobile cell and that on a day when her minor son was playing with the said mobile, the petitioner had got the said mobile from the child and had seen the nude photographs and he transmitted the said nude photographs of lady defacto complainant to his mobile. Later, the petitioner threatened the lady defacto complainant that he would show the said naked video pictures of the lady to her husband or otherwise, she should succumb to his sexual demands. Thereupon, he had committed forcible sexual intercourse on her on 01.08.2018. Later, he had demanded her that she should send video pictures of her private parts and she had send such pictures of her private parts to the petitioner. He had also altogether availed personal loan of Rs.8 lakhs from her. Off late, he was again threatening her that he would divulge her naked pictures etc. and therefore, she had no other way, but to lodge complaint to the Police etc.
3. The learned counsel for the petitioner would point out that the abovesaid allegations are false and baseless. Further that, the specific case put up by the lady defacto complainant to project a case of threat and intimidation made by the petitioner is that she herself had voluntarily send her nude photos to her husband in her mobile cell as demanded by her husband and later, when her mobile phone was being used by her child, the petitioner got access to the said phone and he had transmitted the said Bail Appl..No.8507 OF 2019 4 pictures to his phone and threatened her that if she does not accede to his sexual demands, he would divulge the said nude pictures to her husband.
4. The counsel for the petitioner would point out that since the very case set up by the lady is that initially, she had send the nude pictures in her mobile cell to her own husband as demanded by her husband, then it does not stand to any reason that any person, an outside like the petitioner will be able to threaten and intimidate the lady defacto complainant that he would send those pictures to her husband as admittedly, her husband was already having the said nude photographs and as admittedly, the said nude photographs were taken by the lady defacto complainant based on the specific request of her own husband. On this aspect, the counsel for the petitioner would point out that the basic story put up by the lady about the alleged threat and intimidation put up by the petitioner on her, which led to the story of forcible sexual intercourse on 01.08.2018 would crumble to the ground and does not hold have any believability and credibility.
5. Further, learned counsel for the petitioner would point out that the alleged incident is said to have happened on 01.08.2018 whereas the FIS and the crime has been lodged only as late as on 20.03.2019 and the prosecution has not even remotely explained any reason for the long delay of more than 7 months in the lodging of the case. That the long and unexplained delay in lodging the case would fatally vitiate the impugned criminal proceedings as it affects the believability and credibility of the Bail Appl..No.8507 OF 2019 5 prosecution story. Further, it is pointed out that a close and intelligent reading of the said FIS would show that even if it is assumed that the sexual incidents narrated therein are broadly true, then the same could have happened only on the basis of consensual sexual relationship between the parties and not otherwise. None of the vital ingredients of the offence of rape as per Sec.376 of the IPC are made out.
6. The learned counsel for the petitioner would place reliance on various judgments of the Apex Court and various High Courts including this Court which has laid down the substantial and fine and vital distinction between rape and consensual sexual relationship, where it has been held that where a man and a woman continues to have an affair with sexual relationship for quite some time, then it is very difficult to make out a case of rape. Accordingly, it is urged by the petitioner's counsel that this Court may grant anticipatory bail to the petitioner subject to any stringent conditions.
7. The learned Prosecutor has seriously opposed the plea for anticipatory bail and pointed out that there is a strong possibility of the petitioner intimidating or influencing the witnesses, including the lady defacto complainant, if he is let out on bail.
8. After hearing both sides and after careful evaluation of the facts and circumstances of this case, more particularly, taking into account the long and unexplained delay in lodging of the case and also testing the facts Bail Appl..No.8507 OF 2019 6 of this case, in the light of the judicial precedents which have laid down the substantial and vital distinction between rape and consensual sexual relationship etc., this Court is inclined to take the view that the custodial interrogation of the petitioner would not be really necessary or warranted for effectuating the smooth and proper conduct of the investigation of this crime. However, taking note of the abovesaid serious apprehension raised by the prosecution, it is ordered as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station, where the lady defacto complainant is residing until the conclusion of the trial process, subject to certain exceptions which should be dealt with hereinafter.
9. The learned Prosecutor would point out that the petitioner will have to immediately appear before the investigation officer for interrogation purposes. Hence, the following directions and orders are passed :
(i) The petitioner shall personally appear before the Investigating Officer (I.O.), in relation to Crime No.243/2019 of Irinjalakkuda Police Station and to subject himself for interrogation process without any further delay at any rate by
10 a.m. on any day on or before 20.12.2019 or within such time limit that may be extended by the IO as he deems fit and proper.
(ii) The petitioner will fully co-operate with the Investigating Officer in the interrogation process.
Bail Appl..No.8507 OF 2019 7
(iii) After the interrogation process is over, in case the Investigating Officer arrests the petitioner in relation to the abovesaid crime, then he shall be released on bail on his executing bond for Rs.40,000/- (Rupees Forty Thousand only) and on furnishing two solvent sureties for the like sum both to the satisfaction of the Investigating Officer concerned. However, in that eventuality, the grant of bail will be subject to the following conditions:
(a) The petitioner shall not involve in any criminal offences of similar nature.
(b) The petitioner shall fully co-operate with the investigation.
(c) The petitioner shall report before the Investigating Officer as and when required in that connection.
(d) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
(e) The petitioner shall not visit or go anywhere near to the residence of the lady defacto complainant.
(f) The petitioner shall not reside or enter into the territorial limits of the Police Station where the lady defacto complainant is residing until the conclusion of trial process in this case, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyer/advocate concerned. However, if the petitioner has any emergent need to visit the said area, he may do so, but only with the prior permission of the investigating officer concerned.
(g) The petitioner shall immediately surrender his passport before the Jurisdictional Magistrate Court concerned in relation to this case within 2 weeks from the date of receipt of a copy of this order. Before surrendering the passport, the petitioner/petitioner's counsel will intimate the learned Prosecutor, who is appearing in this case before the court below concerned about the said surrender of passport.
If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate Bail Appl..No.8507 OF 2019 8 orders in accordance with law.
With these observations and directions, the above Bail Application will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE SKS