Kerala High Court
Sibin Abdul Azeez vs State Of Kerala on 26 November, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941
Bail Appl..No.7771 OF 2019
CRIME NO.1523/2019 OF ALUVA EAST POLICE STATION , Ernakulam
PETITIONER/S:
SIBIN ABDUL AZEEZ
AGED 32 YEARS
S/O. ABDUL AZEEZ, SINI NIVAS, RODUVILA, OYOOR,
CHERIYAVELINALLOOR P.O., KOLLAM - 691 516
BY ADVS.
SRI.K.ANAND
SRI.BENNY ANTONY PAREL
SRI.T.M.MUHAMED HAFEES
SHRI.RAJESH O.N.
RESPONDENT/S:
1 STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM - 682 031
2 SUB INSPECTOR OF POLICE
ALUVA EAST POLICE STATION, ERNAKULAM - 683 101
R1-2 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
26.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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Bail Appl..No.7771 OF 2019
ALEXANDER THOMAS, J.
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B.A.No.7771 Of 2019
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Dated this the 26th day of November, 2019.
ORDER
The petitioner herein has been arrayed as the sole accused in the instant Crime No.1523/2019 of Aluva East Police Station, which has been registered for offences punishable under Sec.294(b), 376 & 312 of the I.P.C. The said Crime has been registered on the basis of the FI statement given by the lady de facto complainant on 5.10.2019 at about 6:20 p.m. in respect of the alleged incidents happened for the period from 1.1.2017 to 6.7.2019.
2. The prosecution case in short is that the lady de facto complainant, aged 45 years is a divorcee and is having a daughter, aged 7 years, and that she is working in a school in a Gulf country and the petitioner, aged 32 years is a married man having wife and children and he is also employed as a teacher in the same school where the lady de facto complainant is working and both of them become very close and which developed into a intense love affair and the petitioner used to contact her and that he sued to assure that he would divorce his present wife and then would marry the ::3::
Bail Appl..No.7771 OF 2019 lady de facto complainant and that on 26.8.2018, she had stayed in the petitioner's flat and both of them had physical relationship on that day and on very many occasions and it is stated that most of the time the petitioner had forcible sexual intercourse with her and she protested and the petitioner always used to assure that he would divorce his present wife and he would marry her. Later she became pregnant and he persuaded her to undergo abortion and for that the lady de facto complainant was suggested to undergo DNC. As the DNC could be done in the Gulf country only with the consent of the lady and her husband, both of them had returned to Kerala and got admitted in the hospital at Ernakulam. There the petitioner was shown as her husband and even there in the hospital he had sexual intercourse with the lady and thereafter DNC was performed. At all times the petitioner promised the lady that he would divorce his present wife and marry the lady de facto complainant and that he had not taken any steps to divorce his present wife and thus the lady has been cheated, etc.
3. The learned counsel for the petitioner would submit that the abovesaid allegations raised against the petitioner are false and baseless and a reading of the FI statement would make it clear that the incidents narrated are assumed to be correct, then the ::4::
Bail Appl..No.7771 OF 2019 same would have happened only on the basis of consensual sexual relationship between the parties and not otherwise and therefore none of the vital ingredients of the offence of rape are not made out, etc. Further the so called agreement or promise that a married man would marry a lady, after divorcing his present wife, is against public policy and morals and hence unconscionable and so it is unenforceable. Further the learned counsel for the petitioner has placed reliance on various decisions of the Apex Court and various High Courts that there is vital distinction between the rape and consensual sexual relationship and where a man and a woman continues to have affair with sexual relationship for quite sometime, then it is very difficult to take the view that it amounts to rape and that breach of promise to marry cannot be the basis to contend that consent of the woman was obtained by misconception of facts as covered by Sec.90 of the IPC. Accordingly, it is urged by the learned counsel for the petitioner that the petitioner may be granted anticipatory bail and this Court may impose any stringent conditions for that purpose. Further that there is long and unexplained delay in lodging the FI statement.
4. The learned Prosecutor has opposed the plea for grant of anticipatory bail and has pointed out that there is every ::5::
Bail Appl..No.7771 OF 2019 possibility of the petitioner influencing and intimidating the witnesses, including the lady, if he is let out of on bail, etc. The learned Prosecutor submitted that there is likelihood of the petitioner absconding if he is let out of on bail and the petitioner may be directed to surrender his passport immediately before the jurisdictional Magistrate Court concerned without any further delay.
5. After hearing both sides and on an evaluation of the facts and circumstances and testing the facts on the basis of judicial precedents regarding the substantial distinction between rape and consensual sexual intercourse and also taking note that there is delay in registering the crime, this Court is of the view that custodial interrogation of the petitioner may not be really warranted or necessary for effectuating proper and smooth conduct of the investigation. However, taking note of the serious apprehension raised by the Prosecutor, it is ordered that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the de facto complainant is now residing so long as she is residing in the State of Kerala.
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Bail Appl..No.7771 OF 2019
6. Accordingly the following orders and directions are issued:
(i) The petitioner shall immediately surrender and appear before the Investigating Officer at 9:00 a.m. on any day on or before 13.12.2019 for interrogation purposes or within such time as may be extended by the I.O.
(ii) The petitioner shall fully co-operate with the interrogation process.
(iii) After the interrogation process, in case the Investigating Officer arrests the petitioner, then he shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Forty Thousand only) and on furnishing 2 solvent sureties for the like sum each, both to the satisfaction of the Investigating Officer concerned. Further the grant of bail will be subject to the following conditions:
(a) The petitioner will report before the Investigating Officer for investigation purposes as and when required by the said Officer.
(b) The petitioner will fully co-operate with the investigation process including the conduct of medical test such as potency test, etc.
(c) The petitioner shall not involve in any criminal offences of similar nature.
(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 enter into or reside anywhere within the territorial limits of the Police Station where the lady de facto complainant is residing or so long as she is residing within the State of Kerala, until the conclusion of the trial process.
(f) The petitioner shall immediately surrender his Passport before the jurisdictional Magistrate court concerned and will produce receipt of the surrender before the Investigating Officer concerned.
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Bail Appl..No.7771 OF 2019
(g) If the petitioner violates all or any of the bail conditions, then the jurisdictional court concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law.
With these observations and directions, the above bail application will stand disposed of.
Sd/-
ALEXANDER THOMAS, Judge.
bkn/-