Basheer K.P. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 9TH DAY OF AUGUST 2019 / 18TH SRAVANA, 1941** **BAIL APPL.NO.5245 OF 2019** **CRIME NO.640/2019 OF THALASSERY POLICE STATION , KANNUR** ## **PETITIONER/ACCUSED NO.1:** **BASHEER K.P., AGED 30 YEARS, S/O.LATE HAMEED.N., KOLAYAKKARA PUTHIYAPURAYIL, THARAVOOL, CHENGALAYI P.O., KANNUR- 670631.** **BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR** ## **RESPONDENT/COMPLAINANT & STATE:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR ADV. SRI.P.P.BIJU, FOR DEFACTO COMPLAINANT** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -------------------------------------------B.A. No. 5245 of 2019 -------------------------------------------Dated this the 9[th] day of August, 2019 ## O R D E R The petitioner herein has been arrayed as accused No.1 in the instant Crime No.87/2019 of Kannur Vanitha Police Station, which has been registered for offences punishable under Secs.376(1), 376(2)(n), 120B, 506(i) r/w 34 of the IPC, on the basis of FIS given by lady defacto complainant on 9.7.2019 about 10 pm in respect of the alleged incidents which have happened for the period from 10.4.2019 to 4.6.2019. Since the major part of the alleged incidents is said to have taken place within the territorial limits of Thalassery, the abovesaid crime was later transferred to the Thalassery Police Station, where it has been re-registered as Crime No.640/2019 of Thalassery Police Station, for the very same offences. 2. Counsel for the petitioner would point out that the abovesaid allegations are false and baseless and that a mere reading of FIS would make it clear that even if it is assumed for argument sake that the incidents narrated therein have occurred, B.A. No. 5245 of 2019 ..3.. then the same would have occurred predominantly only on the basis of consent between the parties, and not otherwise, and therefore the vital ingredients of rape as per Sec.376 of the IPC are not made out. 3. Heard Sri.Arjun Sreedhar, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent State and Sri.P.P.Biju, learned counsel appearing for the lady defacto complainant. 4. Both sides have elaborately taken this Court's attention to the FIS in this crime, which has been given at pages 11 to 19 of the memo dated 19.7.2019 filed by the Prosecutor before this Court on 2.7.2019 after making available copies of the same to the other side. 5. The prosecution case in short is that, the petitioner (A1) aged 30 years is an unmarried man who is working as Constable in Police force, and the lady defacto complainant is a divorced lady aged 30 years, and her parents are in Dubai. The petitioner and the lady got acquainted through Facebook and that the petitioner had introduced himself as police officer working in the rank of Asst. B.A. No. 5245 of 2019 ..4.. Sub Inspector of Police and that he is a degree holder and that he is preparing for All India Civil Services Examination, and that since the lady was also preparing for Civil Services Examination and she had felt that they had lot of common interest, they became close and later intense love affair was started between them, and the petitioner expressed all his sympathies on account of her divorced status, and that he assured that he would marry her and on a day when he was hospitalized she had gone there to attend to him, and on 10.4.2019, after coming from the clinic, he had taken her to a lodge and that he had promised her that they will not have sexual relationship before marriage and that once after both of them had entered the lodge, he had forcibly committed sexual intercourse on her, and she felt extremely depressed on account of that, and that he assured her that notice for registration of marriage could be submitted to the Registrar's Officer concerned, and that she was made to understand that the marriage will be solemnized and registered in the competent Registrar's office on 4.6.2019 and told her that both of them will have to proceed on the previous day to Thalassery for that purpose. They traveled from Kozhikode B.A. No. 5245 of 2019 **==> picture [18 x 8] intentionally omitted <==** Railway Station at 10.30 pm on 3.6.2019 and reached Thalassery on 4.6.2019 early morning, and had taken a lodge room since the lady was certain that the petitioner would marry her on that day, she agreed for sexual relationship on that day, later on 4.6.2019 he left the lodge on the guise that he has to make arrangements at the Registrar's Office, and thereafter the petitioner never came back and the lady felt cheated and since the petitioner knew that the lady would complain to the police, two of his friends (A2 and A3) had telephonically contacted her and threatened her of dare consequences if she proceeds with any complaint as against the petitioner. It is in the light of these allegations the petitioner herein has been arrayed as accused No.1 and the other two persons who are said to be the friends of the petitioner have been arrayed as accused Nos. 2 and 3 in the instant crime. 6. Incidentally it is relevant to note that immediately after the first incident of sexual relationship, the petitioner had admitted to the lady that he has not passed degree but has only passed twelfth class and though he is working in the Police force, his rank is not Asst.Sub Inspector of Police, he is only a Police B.A. No. 5245 of 2019 ..6.. Constable and that he is not preparing for Civil Services Examination, etc. According to the lady still she accepted the petitioner thinking that he would fulfill his assurance to marry her, etc. 7. Counsel for the petitioner would point out that the lady defacto complainant has raised similar allegations of rape as against 3 other persons. In that regard the petitioner would bring this Court's attention to certain factual aspects dealt already by this Court in Anx.IV bail order dated 24.5.2019 in B.A.No.3581/2019 filed by one such person who has arrayed as accused on account of the complaint of rape made by the very same defacto complainant. 8. Further it appears that the lady had married one person (Unais) and later they are divorced. Some of the details are also referred in paragraph No.13 of Anx.V order dated 21.3.2019 in M.C.No.413/2017 of the Family Court, Thrissur. Later it appears that after the divorce, the lady has raised a complaint that her divorced husband thereafter had raped her, and a crime has been registered as against her divorced husband (Unais). From paragraph No.4 of Anx.IV, it is stated that Crime No.382/2017 of Kozhikode Town Police Station has been registered as against Unais, on the basis of B.A. No. 5245 of 2019 ..7.. the complaint of the very same defacto complainant, and that Crime No.1188/2017 of Pavaratty Police Station has also been registered for the offence of rape as against the said Unais, on the basis of the complaint of the very same defacto complainant. Apart from this, it is seen that she had also filed a complaint raising yet another allegation of rape as against one Anish, which has resulted in the registration of Crime No.213/2018 of Wandoor Police Station, in which this Court had granted anticipatory bail as per Anx.IV order dated 24.5.2019 on B.A.No.3581/2019. This Court as per Anx.IV order dated 24.5.2019 in B.A.No.3581/2019 has granted anticipatory bail to the abovesaid Anish. 9. On the abovesaid basis the counsel for the petitioner would point out that there are very serious and suspicious circumstances about the nature of the allegations raised by the petitioner about the lady defacto complainant and further that a bare reading of FIS would make it clear that the first incident is indisputably only on the basis of consent. As regards the second incident the case of the lady is that she believed the word of the petitioner that he would marry her, etc. B.A. No. 5245 of 2019 ..8.. 10. Counsel for the petitioner would also point out various decisions of the Apex Court and various High Courts which are dealt with the substantial distinction between rape and consensual sexual relationship, wherein it has been held that where the lady and man have sexual relationship for quite some time, then it cannot be said that, there is an element of rape involved as the relationship is mainly on the basis of consent between the parties, and that mere promise to marry and breach of such promise cannot be the basis to contend that the consent was obtained on the basis of misconception of fact as envisaged under Sec.90 of the IPC. Accordingly the counsel for the petitioner would urge that this Court may grant anticipatory bail to the petitioner with any stringent conditions as the petitioner will fully co-operate with the investigating process. 11. Learned Prosecutor and the learned counsel appearing for the lady defacto complainant has strongly opposed the grant of anticipatory bail, and that the allegations are rape are made out in the FIS, etc. 12. After hearing both sides and after careful evaluation of B.A. No. 5245 of 2019 ..9.. the facts of the case and also taking into account various attendant circumstances borne out from the FIS, as well as certain other factual aspects relating to other rape cases in which the victim is the very same lady defacto complainant about which detailed mention is made by this Court in Anx.IV order and after testing the facts of the case in the light of the abovesaid judicial precedents which has laid out the substantial distinction between rape and consensual sexual relationship, this Court is inclined to take the view that the custodial interrogation of the petitioner may not really be necessary for effectuating smooth and fair conduct of investigation in this crime. 13. However learned Prosecutor would point out that there is already an allegation as against two of the friends of the petitioner who are accused Nos.2 and 3 that they had threatened the lady even before the registration of FIR, and that is why they have been arrayed as accused Nos.2 and 3 in the abovesaid crime, and that there is strong possibility that the petitioner being a Police Constable, to misuse his position and to influence and intimidate the witnesses including the lady defacto complainant, etc. B.A. No. 5245 of 2019 ..10.. 14. The said apprehension raised by the Prosecutor has to be seriously addressed by this Court. It is now submitted by the counsel for the lady defacto complainant that the lady is now residing in Thrissur district. It is submitted by the counsel for the petitioner that the petitioner is now working and residing in Kannur district and not within the territorial limits of Thalassery Police Station. 15. This Court proposes to order that the petitioner shall not enter into or reside anywhere within the territorial limits of District where the lady defacto complainant is residing until the conclusion of trial, subject to certain exceptions. So also this Court is proposed to order that the petitioner shall not get in touch with any of the police officials in Thalassery Police Station where the crime is registered, unless he is called by the Investigating Officer of that Police Station, for any purpose in relation to this crime. The District Police Chief, Kannur, and the SHO, Thalassery Police Station should ensure that the petitioner is not otherwise given any access as a police official to the Thalassery Police Station. Of course, the SHO, Thalassery Police Station as the Investigating B.A. No. 5245 of 2019 ..11.. Officer of the instant crime can certainly direct to appear before him for matters in connection with abovesaid crime or any other case. However the petitioner will have to fully co-operate with the investigation process. Accordingly the following directions and orders are passed. - _i. The petitioner will immediately personally appear before the Investigating Officer in relation to the instant Crime No.640/2019 of Thalassery Police Station for interrogation purposes at any rate by 9 am on any day on or before 24.8.2019._ - _ii. The petitioner will fully co-operate with the Investigating Officer in the conduct of the above interrogation process._ - _iii. If the Investigating Officer insist that the petitioner should undergo potency test, etc, he should co-operate in that regard, also._ - _iv. If the abovesaid process is not over on a single day, it will be open to the Investigating Officer to insist that the petitioner should appear on the next available working day or any other suitable day that may be fixed by him, which the petitioner will comply._ - _v. After the interrogation process is over, in case the Investigating Officer arrests the petitioner in relation to the abovesaid crime, then he shall be released on bail on executing bond for Rs.40,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the Investigating Officer concerned._ B.A. No. 5245 of 2019 ..12.. ## 16. Further it is also ordered that the grant of bail will be subject to following conditions:- - _i. The petitioner shall not involve in any criminal offences of similar nature._ - _ii. The petitioner shall fully co-operate with the investigation._ - _iii. The petitioner shall report before the investigating officer as and when required in that connection._ - _iv. The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _v. The petitioner shall not visit or go anywhere near the residence or workplace of the lady defacto complainant until the conclusion of trial._ - _vi. The petitioner shall not enter into or reside within the territorial limits of the district where the lady defacto complainant 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 lawyers/advocates concerned._ - _vii. However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ - If there is any violation of the abovesaid conditions by the - petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. B.A. No. 5245 of 2019 **==> picture [24 x 9] intentionally omitted <==** 17. Further it is also ordered that in case the lady defacto complainant has a case that the petitioner or other accused or any other person who are supporting the petitioner have intimidated or threatened the lady in connection with the matters in this crime, she may immediately report he same before the District Police Chief, Kannur, as well as before the SHO, Thalassery Police Station, upon which the said police official will take immediate action in the matter. With these observations and directions, the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG