Bail Applications in Crime No.804/2024, Sasthamcotta Police Station, Kollam (Kerala High Court)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 BAIL APPL.NO.5894 OF 2024 ``` ``` CRIME NO.804/2024 OF Sasthamcotta Police Station, Kollam ``` ``` ------------------- ``` ## **`PETITIONER/ACCUSED NO.1 :-`** ``` SUDHEESH KUMAR, AGED 38 YEARS KALEELIL VADAKKATHIL, THOTTATHUM MURI, THURUTHIKKARA.P.O., PIN - 690 540 ``` ``` BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA S.R.PRASANTH ``` ## **`RESPONDENT/STATE :-`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, ALONG WITH Bail Appl..5026/2024 AND 5112/2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 2 :- ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5026 OF 2024 ``` ``` CRIME NO.804/2024 OF Sasthamcotta Police Station, Kollam ``` ``` -------------- ``` ## **`PETITIONERS/ACCUSED No.2 & 3 :-`** - **`1 VISHAK.S @ SAMBU, AGED 25 YEARS S/O SAJEEV, SASI MANDIRAM, THOTTATHU MURI, KUNNATHUR, KOLLAM DISTRICT, PIN - 690 540`** - **`2 KANNAN @ NANDU, AGED 25 YEARS S/O REGHUNATHA PILLAI, CHANGAI KUZHIYIL, NEDIYAVILA, KUNNATHUR, KOLLAM DISTRICT, PIN - 690 540`** ``` BY ADVS. V.SETHUNATH THOMAS ABRAHAM (K/1051/2010) V.R.MANORANJAN (MUVATTUPUZHA) SREEGANESH U. LAKSHMINARAYAN.R GAUTHAM KRISHNAN K.G. SNEHA MARY SANTHOSH ``` ## **`RESPONDENT/STATE/COMPLAINANT :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 SATION HOUSE OFFICER, SASTHAMCOTTA POLICE STATION, ANAKKARA, SASTHAMCOTTA P.O, KOLLAM DISTRICT, PIN - 690 521`** ``` BY SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, ALONG WITH Bail Appl..5112/2024 & 5894/2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 3 :- ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ``` BAIL APPL.NO.5112 OF 2024 ``` ``` CRIME NO.804/2024 OF Sasthamcotta Police Station, Kollam ``` ``` ---------------- ``` ``` PETITIONER/ACCUSED No.4 :- ``` ``` ANANDAN BABU @ NANDU, AGED 24 YEARS S/O. VASUKUTTAN PILLAI,PARAPPADIL HOUSE, PANAPETTY, PORUVAZHY P.O, PIN - 690 520 ``` ``` BY ADVS. K.R.VINOD M.S.LETHA NABIL KHADER LOVEWIN VINU ``` ## **`RESPONDENT/COMPLAINANT :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.07.2024, ALONG WITH Bail Appl..5026/2024 & 5894/2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 4 :- ``` ## **COMMON ORDER** **Dated this the 26th day of July, 2024** These applications are filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and Section 438 of the Code of Criminal Procedure, 1973, for orders of pre-arrest bail. 2. The petitioners are accused 1 to 4 in Crime No.804/2024 of the Sasthamcotta Police Station, Kollam, which is registered against them, for allegedly committing the offences punishable under Sections 354A(2), 354A(3), 376(2)(n), 420 and 506 r/w Section 34 of the Indian Penal Code and Sections 67 and 67A of the Information Technology Act. 3. B.A. No.5894/2024 is filed by the first accused, B.A. No.5026/2024 is filed by the accused 2 and 3 and B.A. No.5112/2024 is filed by the fourth accused. As the applications are arising out of the same crime, they are consolidated, jointly heard and are being disposed of by this common order. ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 5 :- ``` 4. The prosecution case, in brief, is that; the first accused had committed rape on the victim on the false promise of marriage. Subsequently, he withdrew from his promise and did not marry the victim. But, the first accused had taken the video recordings of his conversation with the victim on his mobile phone and then, morphed his face with that of the fourth accused and sent the videos to accused 2 and 3, who in turn blackmailed the victim by threatening her that they would make the videos public. Thus, the accused have committed the above offences. 5. Heard; Sri.K.K.Dheerendrakrishnan, Sri.V. Sethunath and Sri.K.R.Vinod, the learned counsel appearing for the petitioners and Smt.Neema T.V. and Smt.Seetha S., the learned Senior Public Prosecutors. 6. The learned counsel appearing for the first accused vehemently argued that the first accused and the victim were having a consensual relationship for more than three years. A reading of the First Information Report would reveal that even going by the allegation of the ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 6 :- ``` victim, she was raped during the period from 01.09.2021 to 31.03.2024, which was the last date of incident. Yet, the FIR was registered only on 05.06.2024, which by itself proves the falsity and hollowness in the complaint. The first accused is a married man with a five year old child. The victim is well acquainted with the first accused's family because they are neighbours. The victim very well knows that the first accused is married. Therefore, by no stretch of imagination can she allege that the first accused had promised to marry her. He relied on the decision of this Court in **Vishnu** v. **State of Kerala** [2023 (4) KHC 1] to substantiate his contention that the offence under Section 376 of the IPC will not be attracted to the facts of the case. He also stated that it is only to blackmail and pressurise the first accused to yield to the victim's unlawful demands that she has deliberately registered the crime. The learned counsel appearing for the other accused also submitted that there is no material to substantiate that they have committed the offences alleged ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 7 :- ``` against them. They have also implicated in the crime only for the purpose of yielding to the victim's unlawful demands. Their custodial interrogation is not necessary and no recovery is to be effected. Hence, the applications may be allowed. 7. The learned Public Prosecutors opposed the application. They submitted that there are incriminating materials to substantiate the petitioners' involvement in the crime. It was the first accused who committed rape on the victim and the forensic science tests have to be conducted for the proper and full investigation of the crime. If the petitioners are granted orders of pre-arrest bail, they may intimidate the victim and witnesses and tamper with the evidence. Hence, the applications may be dismissed. 8. On an analysis of the materials on record, especially, after going through the allegations in the First Information Report as well as in the First Information Statement, it can be seen that the victim has alleged that ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 8 :- ``` she was continuously raped by the first accused for the period from 01.09.2021 to 31.03.2024. Indisputably, the FIR was registered only on 05.06.2024. The first accused and the victim are immediate neighbours. The first accused is a married man and has a five year old child. The allegation against the first accused is that he repeatedly raped the victim after promising to marry her. The said accusations _prima facie_ seem to be contradictory. However, these are matters to be investigated and decided at the time of trial. The allegation against the accused 2 and 3 is that they had blackmailed the victim stating that they would make her video conversation with the first accused public. The fourth accused is the person whose face was allegedly used by the first accused for creating the morphed videos. 9. In **Vishnu** v. **State of Kerala** [2023 (4) KHC 1], this Court, after scrutinising all the earlier decisions on the point, has made a clear distinction between rape and consensual sex. It has been held that unless there is an ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 9 :- ``` allegation or proof that an accused has given a false promise to the victim to marry the victim, the offence of rape cannot be attributed. In a case where a married man has consensual sex with a woman knowing that they were married, there cannot be an inducement or promise of marriage and consequentially, the offence under Section 376 of the IPC will not be attracted. The same legal position has been reiterated in the decision in **X.** v. **State of Kerala** [2022 KHC 296]. However, these are all matters that have to be investigated and ultimately decided at the time of trial. 10. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that the first accused was a married person and he and the victim had repeated sexual intercourse for the period from 01.09.2021 to 31.03.2024 and the FIR was registered only on 05.06.2024, and further that there is no specific overt act alleged against the accused 2 to 4, I am satisfied that ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 10 :- ``` the petitioners have made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and Section 438 of the Code of Criminal Procedure. Hence, I hold that the petitioners are entitled to an order of prearrest bail. In the result, the application is allowed, subject to the following conditions: - (i) The petitioners are directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioners' arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like amount; - (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer, ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 11 :- ``` including to appear for medical examinations, as and when directed. - (iv) The petitioners shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passports, they shall file affidavits to the effect before the said court within the said period; - (vi) The petitioners shall not get involved in any other offence while they are on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 12 :- ``` - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal** v. **State (NCT of Delhi) and another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. ## **Sd/-** **C.S. DIAS, JUDGE** Jvt/27.7.2024 ``` BA.NOS.5894, 5026 & 5894 OF 2024 ``` ``` -: 13 :- ``` ## **`APPENDIX OF BAIL APPL.5894/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure-ICERTIFIED COPY OF THE ORDER DATED 02.07.2024 IN CRL MC NO. 1190/2024 PASSED BY COURT OF SESSIONS, KOLLAM ```