Binu U. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** **BAIL APPL.NO.8984 OF 2019** **CRIME NO.539/2019 OF ALAKODE POLICE STATION, KANNUR** ## **PETITIONER/ACCUSED:** **BINU U., AGED 39 YEARS, S/O.NARAYANAN, UMMATHIRIYAN HOUSE, KOTTAKEEL, EZHOME.P.O, KANNUR DISTRICT** **BY ADV. SRI.B.MUHAMMED SHAHEEL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031 (INVESTIGATING OFFICER IN CRIME NO.539/2019 OF ALAKODE POLICE STATION, KANNUR DISTRICT)** **SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. ------------------------------------B.A. No. 8984 of 2019 ------------------------------------Dated this the 13[th] day of December, 2019 ## O R D E R The petitioner herein has been arrayed as the sole accused in the instant Crime No.539/2019 of Alakode Police Station, Kannur District, registered for offences punishable under Sec.376(2)(n) of the IPC. The crime has been registered on the basis of the FIS given by the lady defacto complainant now aged 28 years on 25.11.2019 at about 8.20 pm, in respect of the alleged incidents which happened for the period from 1.1.2018 to 4.11.2019. The petitioner has been arrested in this case on 26.11.2019 and after his remand has been under detention since then. 2. The brief of the prosecution case is that, the lady defacto complainant now aged 28 years is a divorcee having a daughter and she is staying with her parents. She became acquainted and later intimate with the petitioner accused aged 39 years and it developed into a love affair. The petitioner had assured her that he would marry her and that he had forcible B.A. No. 8984 /2019 **==> picture [19 x 9] intentionally omitted <==** sexual intercourse with her. The petitioner used to come to her residence when she was alone and the sexual incidents had happened on many occasions. Later in July, 2019, it was found that the lady was pregnant and the petitioner had persuaded her to have abortion and taken her to a doctor, but the doctor did not co-operate. Even thereafter the petitioner was maintaining relationship with the lady. Later when the lady and her parents pressed the petitioner to marry her, he was not taking any interest to marry her. Her parents later went to the petitioner's house and then they came to know that the petitioner is already married to another lady and is having two children, etc . It appears that the last sexual incident had happened on 4.11.2019. 3. The counsel for the petitioner would point out that the abovesaid allegations are false and baseless, and further that a reading of the FIS would make it clear that the lady knew all the details of the petitioner and the allegation that the petitioner had suppressed that he is already a married man, etc appears to be wrong and false. Further that, even the lady is not legally divorced though she is separated from her husband. It is urged that, even the alleged incidents are broadly taken to be true, then the same B.A. No. 8984 /2019 ..4.. would have happened only on the basis of consent between the parties and not otherwise, and hence the vital ingredients of the offence as per Sec.376 of the IPC are not made out in the instant case. 4. Sri.B.Muhammed Shaheel, learned counsel appearing for the petitioner would say that in the facts of this case it cannot be said that a mere alleged breach of promise to marry could be basis to contend that consent was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC, etc. In that regard, the counsel for the petitioner would place reliance on the judgment of the Division Bench of the Calcutta High Court in _**Jayanti Rani Panda v. State of W.B. and Another [1984 CriLJ 1535 CAL]**_ in paragraph No.7 thereof, which reads as follows: _“............The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full_ B.A. No. 8984 /2019 ..5.. _grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. S.90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her.”_ 5. Further it is also pointed out that the petitioner's mother is a blind person and his father is aged more than 75 years who is suffering from serious old age ailments, and there is none to look after his parents, wife and children, who do not have any other income and considering the fact that the petitioner has already suffered detention in this case since 26.11.2019, this Court may order to release him on regular bail subject to strict conditions. 6. The learned Prosecutor has opposed the plea for regular bail and has pointed out that there is strong possibility of the petitioner intimidating and influencing the witnesses, more particularly the lady victim, if he is let out on bail, and the investigation has not so far been completed. B.A. No. 8984 /2019 ..6.. 7. After hearing both sides and after careful evaluation of the facts and circumstances of the case, more particularly testing the facts of the case in the light of the judicial precedents which has laid down the vital and substantial distinction between forcible sexual intercourse (rape) and consensual sexual relationship between the parties, and the other attendant circumstances, including the family background etc, this Court is inclined to take the view that the further incarceration of the petitioner could be avoided and he could be released on regular bail, subject to stringent conditions. 8. However, taking note of the abovesaid apprehension raised by the prosecution, it is ordered as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Polcie Station where the lady victim is residing, until the conclusion of trial process subject to certain exceptions which will be dealt with hereinafter. 9. In this regard it is pointed out that the petitioner and the victim are residing within the limits of two different Police Stations. 10. Accordingly it is ordered that the the petitioner shall be B.A. No. 8984 /2019 ..7.. released on bail on his executing bond for Rs.40,000/- and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the competent court below concerned. However, the grant of bail will be subject to the following conditions:- - _i. The petitioner shall appear before the Investigating Officer (I.O.) on every 2[nd] and 4[th] Saturdays, at any time between 9 am and 1 pm, for the next 4 months, and thereafter he will report before the I.O., as and when directed._ - _ii. The petitioner shall not intimidate or attempt to influence the defacto complainant, witnesses; nor shall he tamper with the evidence._ - _iii. The petitioner shall not commit any offence while on bail._ - _iv. The petitioner shall not go anywhere near to the immediate vicinity of the residence of the lady defacto complainant._ - _v. The petitioner shall not enter into or reside within the territorial limits of the Police Station 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 lawyer/advocate concerned._ - _vi. 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._ B.A. No. 8984 /2019 **==> picture [20 x 9] intentionally omitted <==** If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will 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