High Court of KeralaSingle Judge2021-11-10Anticipatory bail granted subject to conditions

Bail Application No. 7368 of 2021

Case / Petition Number:BAIL APPL. NO. 7368 OF 2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Gopinath P.
Judgment Date: 2021-11-10
Court Decision / Holding: The application is allowed. The petitioner is granted anticipatory bail in the event of arrest in Crime No.1436/2021, Palarivattom Police Station, Ernakulam District, subject to conditions: (i) bond Rs.50,000 with two solvent sureties; (ii) report to the investigating officer on every day from 12.11.2021 to 30.11.2021 and thereafter as called; (iii) not contact or influence or intimidate the de-facto complainant or witnesses; (iv) surrender the passport or file an affidavit if none; (v) not involve in any other crime while on bail. If violated, the bail can be cancelled.
Final Disposition: Anticipatory bail granted subject to conditions

Parties to the Case

Appellants / Petitioners

Petitioner/Accused (name not disclosed in document)

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Station House Officer, Palarivattom Police Station
X X X (IMPLEADED AS PER ORDER DATED 22.10.2021 IN CRL. MA NO. 1/2021 IN BA NO. 7368/2021)

Legal Representation & Advocates

Counsels for Petitioners

• S. Rajeev
• K. Dheerendra Krishnan
• V. Vinay
• M. S. Aneer

Counsels for Respondents

• Addl. Director General of Prosecution D. Anil Kumar
• Sri. Grashious Kuriakose, Senior Advocate

Case Synopsis & Summary

This is an anticipatory bail application by an accused practicing advocate in Crime No.1436/2021 of Palarivattom Police Station, Ernakulam District, registered for offences under IPC sections 376, 376(2)(n) and 506. The de-facto complainant, who had engaged the petitioner as her lawyer, alleged that from 02.10.2020 to 19.08.2021 the petitioner sexually exploited her after befriending her under the pretext of marriage. The first incident is alleged to have occurred at Chalakkudy; subsequent visits to her rented house; the complainant contends the accused misused trust and promised marriage while knowing he was already married. The petitioner contends the relationship was consensual; relies on IPC Sections 375 and 90 to argue that consent may negate the offence, and cites several judgments to buttress the proposition that consensual relations may not constitute rape. The defense relies on Sushila Aggarwal to argue that, even during investigation, limited custody may safeguard the process, while other cited cases are used to support the general proposition that consent matters. The respondents emphasize the seriousness of the allegations and the need for thorough investigation, including potency tests, identification of places, document recovery and possible scientific examination. On balancing, the court grants anticipatory bail subject to conditions to ensure non-interference with the investigation and protect the complainant’s interests.

Provisions of Law Cited

IPC Section 376IPC Section 376(2)(n)IPC Section 506IPC Section 375IPC Section 90

Legal Doctrines & Maxims

Consent under IPC Section 90 in rape cases
Limited custody principle for investigations (Sushila Aggarwal)
Consensual relationship not automatically constituting rape (cited Anilkumar, Dhruvaram Murlidhar Sonar, Sonu)
Anticipatory bail with conditions to protect investigation and liberty

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel submitted that the relationship with the de-facto complainant was purely consensual. He contended that Section 375 IPC requires non-consensual intercourse for rape and that Section 90 IPC defines consent; hence, even if the facts are proved, the offence of rape may not be attracted in a consensual relationship. He relied on S. Harikumar v. State, Anilkumar v. State of Kerala, Dhruvaram Murlidhar Sonar v. State of Maharashtra, Sonu v. State of Uttar Pradesh and Sushila Aggarwal v. State (NCT of Delhi) for the proposition that bail can be granted with limited custody to facilitate investigation without arresting the accused. He emphasized that the interim order was not a denial of liberty and that the investigation can proceed with monitoring and conditions.

Contentions of Respondents

The State contended that the allegations are grave and require thorough investigation. It urged potency tests if necessary, identification visits to places, recovery of documents, and potential scientific examination of the accused’s mobile and other materials. It argued that the accused’s profession as a practicing advocate and the seriousness of the charges justify a robust investigation and monitoring. It also noted that the complainant reported threats after the interim order and that the investigation must be allowed to progress without compromising the case."

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal and others v. State (NCT of Delhi) and another	2020 (5) SCC	Positive	Court relied on the principle that bail can be granted with limited custody to protect investigation.
S. Harikumar v. State of Kerala and others	Bail Application No. 627/2019	Positive	Cited as part of bail jurisprudence on investigative process and liberty.
Anilkumar v. State of Kerala and others	2021 (1) KHC 435	Positive	Cited to support consensual relationship arguments affecting rape charges.
Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra and others	2019 (1) KHC 403	Positive	Cited for the proposition that consensual relationships may not automatically attract 376.
Sonu @ Subhash Kumar v. State of Uttar Pradesh and Another	2021 (2) KHC 314 (SC)	Positive	Cited to support consensual relationship arguments in bail context.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943 BAIL APPL. NO. 7368 OF 2021** **AGAINST THE ORDER/JUDGMENT IN CRMC 1829/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN), ERNAKULAM CRIME NO.1436/2021 OF PALARIVATTOM POLICE STATION, ERNAKULAM DISTRICT PETITIONER/ACCUSED:** X X BY ADVS. S.RAJEEV K.K.DHEERENDRAKRISHNAN V.VINAY M.S.ANEER ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031. (CRIME NO. 1436/2201 OF PALARIVATTOM POLICE STATION, ERNAKULAM 682 025). 2 STATION HOUSE OFFICER, PALARIVATTOM POLICE STATION, (CRIME NO. 1436/2021, OF PALARIVATTOM POLICE STATION, ERNAKULAM 682 025). 3 X X X (IS IMPLEADED AS PER ORDER DATED 22.10.2021 IN CRL. MA NO. 1/2021 IN BA NO. 7368/2021) BY ADVS. ADDL.DIRECTOR GENERAL OF PROSECUTION D.ANIL KUMAR ## **OTHER PRESENT:** SRI. GRASHIOUS KURIAKOSE (ADGP) THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 7368 OF 2021 2 ## **ORDER** This is an application for anticipatory bail. 2. The petitioner is the accused in Crime No.1436/2021 of Palarivattom Police Station, Ernakulam District registered alleging commission of offences under Sections 376, 376(2)(n) and 506 of the Indian Penal Code (the' Code'). 3. The allegation against the petitioner, who is stated to be a practicing advocate, is that he got acquainted with the _de-facto_ complainant when the _de-facto_ complainant and her father had engaged him as a lawyer and thereafter, he befriended the _de-facto_ complainant and subjected her to sexual intercourse during the period from 02.10.2020 till the date of the complaint on 19.08.2021. The first incident complained of was when the _de-facto_ complainant was allegedly taken to Chalakkudy on 02.10.2020. It is alleged that, thereafter, the _de-facto_ complainant had taken a house on rent at the instance of the petitioner and he had visited her there on several occasions and had continued the relationship with her on the false pretext of marriage. It is alleged that when the _de-facto_ complainant came to realise that the petitioner was already married, she BAIL APPL. NO. 7368 OF 2021 3 decided to file the complaint on 19.08.2021. 4. Sri.S.Rajeev, the learned counsel appearing for the petitioner would submit with reference to the contents of the first information statement which is on record as Annexure R3(a) and Annexures 4 and 5 produced by the petitioner that the relationship between the petitioner and the _de-facto_ complainant was purely consensual. The provisions of Section 375 of the Code are pointed out to show that unless the consent was obtained in a manner contemplated by that Section, the offence of rape is not attracted. Reference is also made to the provisions of Section 90 of the Code to contend that even if the prosecution case was believed in its entirety, the consent could not be stated to have been obtained in the manner contemplated by that provision. The learned counsel also refers to the order of this Court in Bail Application No.627/2019 ( _S.Harikumar vs. State of Kerala and others), Anilkumar vs. State of Kerala and others (2021 (1) KHC 435), Dhruvaram Murlidhar Sonar (Dr.) vs. State of Maharashtra and others (2019(1) KHC 403) and Sonu @ Subhash Kumar vs. State of Uttar Pradesh and Another (2021 (2) KHC 314 (SC))_ to contend that where the relationship between the parties was consensual, the question of an offence would not constitute an offence under Section 376 of 4 BAIL APPL. NO. 7368 OF 2021 the Code. The judgment in _Sushila Aggarwal and others vs. State (NCT of Delhi) and another (2020 (5) SCC)_ is relied on for the proposition that even in cases where the prosecution insists that custody of an accused is necessary for a proper investigation including recovery, such investigation and recovery can be ensured by giving limited custody of the accused to the prosecution. Regarding the contention that immediately after this Court granted an interim order on 22.10.2021, the petitioner threatened the _defacto_ complainant, it is submitted that no such incident has taken place. 5. Sri.Grashious Kuriakose, Senior Advocate, the learned Additional Director General of Prosecution would contend that the allegations against the petitioner are quite serious and that the truth of the matter can be ascertained only after thorough investigation. He submits that considering the seriousness of the allegations and considering the fact that the petitioner is a practicing advocate, the investigation of the case has been entrusted to a senior officer in the rank of Assistant Commissioner of Police. He submits that the prosecution will have to conduct a potency test on the accused. He also submits that the investigating agency may require the presence of the accused to identify the places at which the _de-facto_ complainant was allegedly subjected to sexual abuse. He also submitted 5 BAIL APPL. NO. 7368 OF 2021 that the recovery of documents such as lodge registers etc may be required. According to him, it is also possible, depending on material that may be provided by the _de-facto_ complainant that further scientific examination may be required of items such as the mobile phone of the petitioner and such other material that may come into the possession of the prosecution. It is, however, very fairly submitted that the compliant that the petitioner had threatened the _de-facto_ complainant on 22.10.2021, immediately after the interim order of this Court, was thoroughly investigated and the Police had received no information to suggest that the allegation is correct in any manner. He also submits that, based on the investigation and the information collected by the Police, a refer report has been filed in Crime No.2590/2021 of Kothamangalam Police Station which relates to the complainant by the _de-facto_ complainant that the petitioner threatened her on 22.10.2021 at about 8.45 pm. 6. Sri.D.Anilkumar, the learned counsel appearing for the _de-facto_ complainant would submit that allegation of the _de-facto_ complainant suggests that the petitioner had misused his position of trust as a lawyer and had committed sexual assault on the _de-facto_ complainant after promising to marry her. He submits that the allegation that there were 6 BAIL APPL. NO. 7368 OF 2021 financial transactions between the petitioner and the _de-facto_ complainant is completely false. He also states that the grant of bail, at this stage, may affect the progress of the investigation especially considering the allegation of the _de-facto_ complainant that she was threatened by the petitioner on 22.10.2021, immediately after the interim order of this Court in the above bail application. He, therefore, submits that atleast in the initial stage of the investigation, the custody of the petitioner is absolutely necessary for the prosecution. 7. Having regard to the facts and circumstances of the case and considering the law laid down by the Supreme Court in _Sushila Aggarwal and others (supra)_ and taking note of the law laid down in _S.Harikumar vs. State of Kerala and others (supra), Anilkumar vs. State of Kerala and others (supra), Dhruvaram Murlidhar Sonar (Dr.) vs. State of Maharashtra and others (supra) and Sonu @ Subhash Kumar vs. State of Uttar Pradesh and Another (supra),_ I am of the view that the petitioner can be granted anticipatory bail subject to conditions to ensure that he does not interfere with the investigation into Crime No.1436/2021 of Palarivattom Police Station in any manner. 8. In the result, this application is allowed and it is directed that 7 BAIL APPL. NO. 7368 OF 2021 the petitioner shall be released on anticipatory bail in the event of arrest in connection with Crime No.1436/2021 of Palarivattom Police Station, Ernakulam District, subject to the following conditions:- - (i) The petitioner shall execute a bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like sum to the satisfaction of the Jurisdictional Court; - (ii) The petitioner shall report before the investigating officer in Crime No.1436/2021 on every day at 10.00 am for the period from 12.11.2021 till 30.11.2021. Thereafter, the petitioner shall appear before the investigating officer as and when called upon to do so; - (ii) The petitioner shall not attempt to contact the _de-facto_ complainant or to interfere with the investigation or to influence or intimidate any witness in Crime No.1436/2021 of Palarivattom Police Station, Ernakulam District; - (iii) The petitioner shall surrender his passport before the Jurisdictional Court. If the petitioner does not have a 8 BAIL APPL. NO. 7368 OF 2021 passport, he shall execute an affidavit to that effect and file the same before the said court within seven days of release on bail; (iv) The petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.1436/2021 of Palarivattom Police Station, Ernakulam District may file an application before this Court, for cancellation of bail. **Sd/-** **GOPINATH P. JUDGE** **bng/10/11/21**