Kerala High Court
Aneesh A.K vs Sub Inspector Of Police on 31 January, 2019
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940
Bail Appl..No. 473 of 2019
CRIME NO. 567/2017 OF Chevayoor Police Station, Kozhikode
PETITIONER/ACCUSED:
ANEESH A.K., AGED 27 YEARS,
S/O ARAVINDAN, KOOVVAPATACHALIL HOUSE,
KALLURUTTY (PO), OMASSERY (VIA),
KOZHIKODE DISTRICT.
BY ADVS.
SRI.P.V.KUNHIKRISHNAN
SRI.P.V.ANOOP
RESPONDENTS/COMPLAINANT & STATE:
1 SUB INSPECTOR OF POLICE,
CHEVAYOOR POLICE STATION,
KOZHIKODE, PIN-673 017.
2 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM,
KOCHI-682 031.
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 31.01.2019, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No. 473 of 2019 2
ORDER
This application is filed under Section 438 of the Code of Criminal Procedure.
2. The applicant herein is the accused in Crime No.567 of 2017 of the Chevayur Police Station. The aforesaid crime was registered on 08.09.2017 on the basis of a complaint lodged by a lady aged 20 years. In her complaint she alleges that she used to work in a textile shoproom at Malaprambu earlier. While working as aforesaid, she fell in love with the applicant herein. He is alleged to have disclosed that he is desirous of marrying her. Later he went to met the parents of the victim girl and informed them of his willingness. Thereafter, they started going out together. Some time in the month of June, 2017, the applicant is alleged to have taken the victim to the Kakkayam Dam site in a car. She alleges that the car was parked in an isolated area and thereafter, the applicant herein kissed her and fondled her breasts. He also touched her intimate private parts. However, she did not disclose the said fact to her parents. When he started ignoring her, she lodged the complaint alleging sexual abuse. Bail Appl..No. 473 of 2019 3
3. The learned counsel appearing for the applicant contended that he is innocent of all allegations. According to the learned counsel, the relationship he had with the victim was consensual. The victim has no case that the applicant had subjected her to penile penetration or any other aggravated sexual act. After being a consensual partner, when the relationship became strained, he has been implicated in a false case contends the learned counsel. He would heavily rely on the decisions of the Hon'ble Supreme Court in Uday v. State of Karnataka [(2003) 4 SCC 46] and Deelip Singh @ Dilip Kumar v. State of Bihar [(2005) 1 SCC 88] to bring home his point that it can only be deduced that she had voluntarily and consciously consented to have a sexual relationship with the applicant and her consent was not in consequence of any misconception of fact. The learned counsel would also rely on the decision in Dr. Dhruvaram Murlidhar Sonar v. The State of Maharashtra & Ors. (2019 (1) SCALE 64) to substantiate his contention.
4. I have heard the learned Public Prosecutor, who has opposed the prayer. The learned Public Prosecutor has also submitted that the victim stated in clear terms that the applicant herein had sexually abused her on a false promise of marriage. Bail Appl..No. 473 of 2019 4
5. I have considered the submissions advanced and have gone through the first information statement as well as the other materials in the case diary. It is evident from the statement of the victim that the applicant and the victim were in love with each other. Later, the their relationship became strained.
6. In Dhruvaram (supra), it was held by the Apex court as follows:
20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the Accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees 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 must be treated differently. If the Bail Appl..No. 473 of 2019 5 complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence Under Section 376 of the Indian Penal Code.
7. Having considered the allegations in detail, it does not appear that the applicant had any mala fide motive and had had made false promise to satisfy his carnal desires. The applicant is aged 25 years and he had even met the parents of the victim and sought for her hand in marriage. However, later, due to unforeseen circumstances, the parties fell apart. Furthermore, the victim has no case that the applicant had subjected her to penile penetration. Having considered all the relevant aspects, I do not think that the custodial interrogation of the applicant is required for an effective investigation. He can be directed to co-operate with the investigation, by imposing appropriate conditions:
In the result, this application is allowed. 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 his executing a bond for a sum of Rs.40,000/- (Rupees Forty thousand only) with two solvent sureties each for the like sum. The above order shall be subject to the Bail Appl..No. 473 of 2019 6 following conditions:
i) The applicant shall co-operate with the investigation and the shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for two months 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.
ii) 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, nor shall he tamper with the evidence. He shall not contact the victim or her family members.
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 DSV/-