Kerala High Court
Jerlin 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. 3434 OF 2019
AGAINST THE ORDER/JUDGMENT IN CRMC 975/2019 OF II ADDITIONAL
DISTRICT COURT,ERNAKULAM DATED 04-05-2019
CRIME NO. 757/2019 OF PALLURUTHY POLICE STATION, ERNAKULAM
PETITIONER/ACCUSED:
JERLIN, AGED 26 YEARS,
S/O. XAVIER, VELIPARAMBIL HOUSE, KANNANGATTU ROAD,
PAMBAIMOOLA, ERNAKULAM DISTRICT.
BY ADVS.
SRI.ANIL K.MOHAMMED
SRI.P.G.GOKULNATH
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
SRI.AMJAD ALI, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
20.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
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B.A. No. 3434 of 2019
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Dated this the 20th day of May, 2019
ORDER
The petitioner is the sole accused in Crime No.757/2019 of the Palluruthy Police Station which has been registered for offence punishable under Sec.376 of the IPC.
2. The brief of the prosecution case is that, the petitioner accused aged 25 years had befriended the lady defacto complainant/victim aged 23 years through Facebook messaging and that by giving a false promise that he would marry her, had committed sexual intercourse on her on multiple occasions during the period from 1.3.2015 to 13.11.2018, etc. The crime has been registered on the basis of first information given by the lady defacto complainant on 25.4.2019.
3. The learned counsel appearing for the petitioner would point out that, a close and intelligent reading of the first information statement given by none other than the lady defacto complainant would reveal that, the incidents would have B.A. No. 3434 / 2019 ..3..
happened only on account of consensual sexual relationship between the parties, and that mere breach of promise to marry will not make a situation of getting the consent of lady on the basis of misconception of fact, as understood in Sec.90 of the IPC. Further the learned counsel appearing for the petitioner would point out that, there are various decisions of the Apex Court and this Court highlighting the legal aspect that, there is fine distinction between rape as understood in Sec.376 of the IPC as well as consensual sexual relationship between the parties, and that mere breach of promise to marry will not make a situation that the consent of the lady has been obtained on the basis of misconception of fact as understood in Sec.90 of the IPC, etc. Further it is point out that in the Sec.164 statement given by the lady defacto complainant, she has clearly stated that she is willing to withdraw the complaint in case the accused marries her.
4. After hearing the learned counsel appearing for the petitioner and the learned Prosecutor, and after testing the facts of this case in the light of the abovesaid judicial precedents in the B.A. No. 3434 / 2019 ..4..
matter of distinction between rape as understood in Sec.376 of the IPC and consensual sexual relationship between the parties, this Court is of the considered view that, the continued detention of the petitioner is not really necessary and called for in the facts and circumstances of this case.
5. Accordingly it is ordered that the petitioner shall be released on bail on his executing bond for Rs.50,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the competent court below concerned.
6. However the grant of bail will be subject to the following conditions:-
i. The applicant shall appear before the Investigating Officer on every 2nd and 4th Saturdays, at any time between 10 am and 1 pm, for a further period of 3 months or till final report is filed, whichever is earlier. Thereafter the petitioner will appear before the Investigating Officer as and when directed by him.
ii. He shall not intimidate or attempt to influence the defacto complainant/victim, witnesses; nor shall he tamper with the evidence.
iii. He shall not commit any offence while on bail. iv. The petitioner shall not go anywhere near to the workplace or residence of the lady defacto complainant. v. The petitioner shall not reside or enter into the territorial limits of the district where the lady defacto complainant and her family is residing until the conclusion of trial, 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.
B.A. No. 3434 / 2019
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If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned shall stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law.
With these observations and directions, the above Bail Application will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE MMG