Kerala High Court
Pradeep vs State Of Kerala on 20 May, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 20TH DAY OF MAY 2019 / 30TH VAISAKHA, 1941
Bail Appl..No. 2239 of 2019
CRIME NO. 18/2019 OF Cheruthuruthy Police Station , Thrissur
PETITIONER/ACCUSED:
PRADEEP
AGED 40 YEARS
PADINJARETHIL HOUSE,VAZHALIPADAM,
CHERUTHURUTHI,THRISSUR.
BY ADV. SRI.MANSOOR.B.H.
RESPONDENTS:COMPLAINANT/STATE:
1 STATE OF KERALA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM-682031.
2 STATION HOUSE OFFICER,
CHERUTHURUTHI POLICE STATION,THRISSUR DISTRICT.
BY ADV.
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.05.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No. 2239 of 2019
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ALEXANDER THOMAS, J.
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B.A.No.2239 of 2019
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Dated this the 20th day of May, 2019
ORDER
This is an application seeking grant of pre-arrest bail to the petitioner who is the sole accused in Crime No. 18 of 2019 of Cheruthuruthy Police Station which has been registered for offences under Sections 450,376 (1),376(2) (n) of Indian Penal Code.
2. The brief of the prosecution case as projected in Annexure A, FIR registered on 13.01.2019 is that with the intention to commit rape on the lady defacto complainant, the petitioner/accused had trespassed into her residence on 15.5.2015 at 8.30 p.m. and had taken her nude photographs and threatened her that he is having her nude photographs and that threatened to publish and circulate in the social media if she does not have sexual intercourse with him and committed rape on her that day and thereafter he had committed sexual intercourse with her on many other occasions till 28.09.2018 and that she had thus become pregnant in that regard and she had delivered a child etc. The case projected in First Investigation statement produced along with Annexure A is that the petitioner is an electrician by profession and is a neighbour of the lady Bail Appl..No. 2239 of 2019 3 defacto complainant who is a married lady and that he had once come to her residence of the lady defacto complainant and that when she was taking bath had got into the bathroom which was not locked and had taken her nude photographs and that he has committed sexual intercourse with her by threatening circulation of said photograph on several occasions as above stated etc.
3. Learned counsel for the petitioner had pointed out that a close and proper reading of the First Investigation statement given by none other than the lady defacto complainant had disclosed that even if the allegations are correct, the incidents have occurred only on account of the consensual sexual relationship between the parties and the same cannot amount to rape as is understood in Section 376 of Indian Penal Code etc. Counsel for the petitioner has also pointed out various judicial precedents of the Apex court and this Court which lays down fine distinction between rape as envisaged in Section 376 of Indian Penal Code and consensual sexual relationship between the parties and has contended that even if the allegations are taken in its face value the same would not amount to rape as envisaged in Section 376 of the Indian Penal Code.
4. Further, counsel for the petitioner would point out that this Court may grant anticipatory bail to him subject to strict conditions and the petitioner will fully co-operate with the conduct of potency test, paternity Bail Appl..No. 2239 of 2019 4 test etc.
5. Learned Public Prosecutor has opposed grant of anticipatory bail.
6. After having heard both sides and after testing facts of the case, in the light of the dictum laid down in the said judicial decisions which lays down distinction between rape as understood under Section 376 of Indian Penal Code and consensual sexual relationship between the parties, this Court is of the considered opinion that the custodial interrogation of the petitioner may not really be warranted in the facts of this case. However the petitioner shall fully co-operate with Investigating Officer in the investigating process and shall also co-operate in the conduct of potency test as well as paternity test.
7. Learned Public Prosecutor has pointed out that the petitioner is the immediate neighbour of the lady defacto complainant and that a case has been registered in the same Police Station that the husband of the lady has attacked the petitioner which has led to the registration of crime for offence under Section 307 of the Indian penal Code as against the lady defacto complainant's husband and therefore this Court may direct that the petitioner shall not reside anywhere within the territorial limits of the Police Station where the lady defacto complainant and her family members are now residing.
Bail Appl..No. 2239 of 20195
8. Taking note of the possible facts and circumstances of the case, the following directions and orders are passed:
The petitioner shall immediately appear before the Investigating Officer in relation to Crime No. 18/2019 on Cheruthuruthy Police Station for interrogation process by 10. a.m. on any day on or before 31.05.2019 and that the petitioner will fully cooperate with the Investigating Officer in the above interrogation process and if the interrogation process not over on a single day, then the Investigation Officer will be at liberty to direct the petitioner to appear on any subsequent day or days on any of subsequent occasions which petitioner will fully comply. Petitioner will also co-operate the conduct of the potency test.
9. After the interrogation process is over, in case the Investigating Officer arrests the petitioner in connection with the aforesaid crime he shall be released on bail on his executing a bond of Rs.50,000/- 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) Petitioner shall not involve in any criminal offences of similar nature.
(b) Petitioner shall fully co-operate with the investigation.
(c) Petitioner shall report before the Investigating Officer as and when required in that connection.Bail Appl..No. 2239 of 2019
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(d) Petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
(e) The petitioner will also fully co-operate with the conduct of potency test, if so required by the Investigating Officer.
(g) If the petitioner does not comply with the directions issued by this Court subject to the interrogation process, then the benefit of the directions issued by this Court will automatically stand vacated without any further orders of this Court.
(f) Petitioner shall not reside anywhere Petitioner shall not reside anywhere within the limits of the Police Station where the lady defacto complainant and her husband are now residing until the conclusion of the trial in this case except for the limited purpose of reporting to the Investigating Officer in relation to this case or other cases or for attending to any court in relation to this case or other for other cases or for contacting his lawyer etc.
10. In case of violation of any of the above conditions, the jurisdictional Court concerned will stand hereby empowered to consider the application for cancellation of bail, if required, and pass appropriate orders in accordance with the law.
With these observations and directions, the above Bail Application stands disposed of.
Sd/-
ALEXANDER THOMAS
SCS JUDGE