Bail Appl. No.3385 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** ## **Bail Appl..No.3385 OF 2020** **CRIME NO.839/2020 OF TOWN WEST POLICE STATION , THRISSUR** ## **PETITIONER/ACCUSED:** **BALU VIJAYARAGHAVAN AGED 28 YEARS S/O. A.R. VIJAYARAGHAVAN, ASSISTANT PROFESSOR, (ENGLISH DEPARTMENT) SREE KRISHNA COLLEGE, GURUVAYUR, THRISSUR, RESIDING AT DARSANA, LENIN NAGAR, POOMKUNNAM P O, THRISSUR.** **BY ADV. SRI.B.MOHANLAL** ## **RESPONDENTS/COMPLAINANTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 THE STATION HOUSE OFFICER, THRISSUR WEST POLICE STATION, THRISSUR-680020.** ## **SRI AJITH MURALI PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.06.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.3385 OF 2020** **2** ## **O R D E R ~~~~~~~~~** The petitioner herein is arrayed as the accused in Crime No.839 of 2020 of Thrissur West Police Station, Thrissur, registered under Sections 354, 376 (1), 376 (2)(n) and 506 of the Indian Penal Code. He has approached this Court seeking an order of pre-arrest bail. 2. This application is taken up and heard through Videoconferencing. 3. The crime has been registered on the strength of Annexure-5 complaint lodged by the de facto complaint before the Station House Officer of the Thrissur West Police Station. In her complaint, she alleges that she had joined English and Foreign Languages University, Hyderabad for pursuing her Masters in the year 2016. The petitioner herein was her senior and he was doing his final year Ph.D at that point in time. They fell in love and started going out. It is stated that in July 2017, the petitioner secured a job at Mount Carmel College at Bangalore as an Assistant Lecturer. In the month of **Bail Appl..No.3385 OF 2020** **3** September, 2017, the de facto complainant was invited to Bangalore and they stayed in his sister’s house. He assured her that he would marry her and persuaded her to have sex with him. Believing his words, she surrendered herself to him and they had sexual intercourse. She further states that she was taken to Bhubaneswar and they stayed in a guest house for three days. During that period, based on his assurances, she permitted him to have a bodily relationship. This continued till the month of February 2018. Sometime in the month of July 2018, he shifted to Kollam when he secured a job at Amritha University. The petitioner continued to assure the lady that he would marry her. She further states that in the month of July, 2019, she was invited to Thrissur and she was molested inside a car. The petitioner then secured a job as Assistant Professor at the Sreekrishna College at Guruvayoor. Thereafter, he stopped contacting the lady. When she enquired, she got information that the marriage of the petitioner has been fixed with another girl. This led her to approach the police with the complaint. 4. Sri. B. Mohan Lal, the learned counsel appearing for the petitioner, referred to the complaint and it was argued that the petitioner as well as the de facto complainant are highly educated **Bail Appl..No.3385 OF 2020** **4** individuals who had occasion to study at the same University. The de facto complainant is elder to the petitioner by two years. They were good friends for years and had a very open relationship. At no point in time, did the petitioner inform the de facto complainant that he would marry her. On the other hand, when the petitioner invited the de facto complainant for his marriage which was to be solemnized on 7.5.2020, she has now come forward with a blatantly false allegation. He would contend that the raising of allegations without any material to substantiate the same, that too after several years would clearly show that the allegations have no basis of truth. He would also urge that there are no materials to suggest that the consent to have sexual intercourse was vitiated by a ‘misconception of fact’ arising out of a promise to marry. Relying on the decision of the Apex court in **Dr. Dhruvaram Muralidhar Sonar v. State of Maharashtra & Ors.**[1] and also that in **Pramod Suryabhan Pawar v. State of Maharashtra and another**[2] , it is submitted that the offence under Section 376 of the IPC will not be made out against the petitioner. 5. The learned Public Prosecutor has opposed the prayer. He contended that there is no reason to disbelieve the version of the de 1 (2019) 1 KHC 403 2 (2019) 9 SCC 608 **Bail Appl..No.3385 OF 2020** **5** facto complainant. According to the learned Public Prosecutor, the complaint suggests that the petitioner had no intention to marry the lady when he had obtained her consent to have sex, and if that be the case, the consent is clearly vitiated. 6. I have considered the submissions advanced and have gone through the case diary. 7. At the time of consideration of bail applications, Courts are not expected to go into the minute details of the allegations nor discuss the merits and demerits of the materials collected against the accused lest it causes prejudice either of the parties. For the limited purpose of ascertaining as to whether the petitioner has made out a prima facie case for pre-arrest bail, I have meticulously scanned the materials. I find that the de facto complainant is a Post Graduate and is working as a teacher. The petitioner on the other hand is a Professor. From the narration in the complaint, it is apparent that they were in a serious relationship for years. She has stated in the complainant that in view of their closeness, on occasions she conceded to the wishes of the petitioner to have a physical relationship. However she states that it was on the assurance given by **Bail Appl..No.3385 OF 2020** **6** the petitioner that he would marry her. Now the question is whether, on these allegations, the petitioner should be forced to undergo custodial interrogation. The Apex Court in **Dr. Dhruvram** (supra) has held that there is a clear distinction between rape and consensual sex. The question to be considered in such cases is whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to that effect only to satisfy his lust. The former is not rape but the latter will fall within the ambit of cheating and deception. It has also been held that there is a subtle distinction between mere breach of a promise and not fulfilling a false promise. If the materials prima facie suggest that the prosecutrix agreed 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 will not fall within the ambit of rape and will have to be considered differently. In other words, if the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, then such consent cannot be said to **Bail Appl..No.3385 OF 2020** **7** be given under a misconception of fact. (See **Uday v. State of Karnataka** )[3] . It is difficult to accept at this stage that a false promise was given to engage her in a sexual relationship and that it was under such misconception of fact that she had acceded to the wishes of the petitioner. Having considered the facts and circumstances in all its perspectives, I am of the considered opinion that the custodial interrogation of the petitioner is not necessitous for an effective investigation. In the result, this application will stand allowed. The petitioner shall appear before the Investigating 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.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum. The above order shall be subject to the following conditions: i) He shall permit himself to be examined by a Medical Officer as required under Section 53A of the Cr.P.C and shall undergo potency test as and when directed to do so. ii) He shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for two months or till the final report is filed, whichever is earlier. 3 (2003) 4 SCC 46) **Bail Appl..No.3385 OF 2020** **8** iii) 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. ## iv) 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** PS/8/6/2020