Bipin Das v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944** ## **BAIL APPL. NO. 6226 OF 2022** ## **PETITIONER/ACCUSED:** **BIPIN DAS C.J. AGED 30 YEARS,S/O. CHRISTUDAS, PONNOORKONAM HOUSE, NALANCHIRA, PAROTTUKONAM, ULLOR VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695011** **BY ADVS. RINU S. ASWAN KOSHY NEWTON J. DHARUN P. GOPIKA H.H ABHIJITH.K.ANIRUDHAN** ## **RESPONDENT/STATE/DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031** - **2 XXXX BY SRI.GOPAN R. SRI.NOUSHAD K.A, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.10.2022, THE COURT ON 21.10.2022 PASSED THE FOLLOWING:** **-:2:-** B.A. No.6226/22 ## **BECHU KURIAN THOMAS, J.** ## **--------------------------------** ## **B.A. No.6226 of 2022** ## **--------------------------------** Dated this the 21[st] day of October, 2022 ## **ORDER** Petitioner is the accused in Crime No.517 of 2022 of Mannanthala Police Station. This application is preferred under section 438 of the Code of Criminal Procedure, 1973, seeking anticipatory bail. 2. Petitioner is alleged to have committed offences punishable under section 376 of the Indian Penal Code, 1860, apart from sections 3, 4, 7 and 8 of the Protection of Children from Sexual Offences Act, 2012. 3. According to the prosecution, the accused had, after becoming acquainted with the minor victim, sexually assaulted her on 09.02.2022 inside her house and compelled her to indulge in penetrative sexual assault and thereafter sexually exploited her till 07.03.2022 and thereby committing the offences alleged. 4. Sri. Rinu S.Aswan, the learned counsel for the petitioner contended that the prosecution allegations are totally false and that the petitioner is innocent of the crime. Learned counsel argued that the alleged victim and the petitioner are legally married and when the **-:3:-** B.A. No.6226/22 marriage was intimated to the victim's family, they had forcibly taken her away from the custody of the petitioner, put her under house arrest, and registered the crime. The crime is alleged to be registered at the instigation of the parents of the victim when the petitioner refused to agree for a mutual divorce. 5. The learned counsel further contended that the marriage with the victim and the petitioner took place after the victim attained majority and that prior to the marriage, there had never been any sexual relationship between them. It was also submitted that a petition for restitution of conjugal rights has already been preferred before the Family Court and that the parents of the victim are misusing the provisions of law to compel the petitioner to yield to their illegal demands. The learned counsel further submitted that the marriage between the petitioner and the victim took place without any threat or coercion and are substantiated by the photographs produced as Annexure 1 and also the certificate of marriage dated 29.06.2022. 6. On behalf of the petitioner, it was further submitted that the threat and coercion exerted by the parents of the victim has resulted in the crime being alleged against him. It was also submitted that an application for restitution of conjugal rights is pending consideration as O.P. No.1863 of 2022 before the Family Court, Thiruvananthapuram. **-:4:-** B.A. No.6226/22 The learned counsel further submitted that the marriage took place on 12.04.2022 while the crime was registered on 06.07.2022, and in such a context, the delay is material, clearly revealing the ulterior reasons behind the complaint. It was further submitted by the learned counsel that the petitioner is willing to abide by any condition that may be imposed. 7. Sri.Noushad K.A., the learned Public Prosecutor, opposed the grant of bail and contended that the nature of allegations against the petitioner is such that custodial interrogation is essential. It was submitted that the date of birth of the victim is 08.03.2004 and that she attained majority only on 08.03.2022. It was also submitted that as per the allegation, the petitioner had subjected the victim to penetrative sexual assault in February 2022, and even though they tied the knot on 12.04.2022 and registered the marriage on 17.05.2022, they have not resided together. The learned Public Prosecutor also submitted that going by the allegations of the victim, penetrative sexual assault occurred at a time when she was a minor and therefore, custodial interrogation is essential. 8. Sri. R. Gopan, the learned Counsel for the victim, on the other hand, contended that the petitioner had committed rape upon the victim on 09.02.2022 at a time when the victim was a minor. Relying upon the affidavit filed by the victim, it was submitted that the **-:5:-** B.A. No.6226/22 petitioner had become acquainted with the victim through a fitness centre while she was studying for the Plus Two course. Though initially they developed a good relationship, soon the petitioner started sexually assauliting her and despite her requests to stop the relationship, petitioner continued to harass her and under the threat of publishing various photographs available with him, he directed the victim to keep the doors of her bedroom open and around 12 p.m. on 09.02.2022, petitioner came inside her bedroom and under threat, raped her. Photographs and videos were also taken in the mobile phone of the sexual act. 9. The learned counsel further contended that petitioner again threatened the victim after she attained majority, and compelled her to accompany him to the Sree Ganapathi Temple at Mukkola and forced her to perform a marriage ceremony, though the said ceremony is not legally valid. Thereafter, the petitioner again compelled the victim to register the marriage with the Corporation of Thiruvananthapuram and after doing so, raped the victim several times. According to the affidavit of the victim, on 05.07.2022, the alleged marriage was intimated to the parents of the victim, who in turn, gave courage to the victim to file a complaint based on which the FIR was registered. It is also averred in the affidavit that the alleged marriage is not a valid marriage in the eyes of law since the victim **-:6:-** B.A. No.6226/22 belongs to Christian Nadar Community and therefore, the registration of the marriage is legally invalid. Relying upon the said averments in the affidavit, learned counsel for the second respondent sought for dismissal of the bail application. 10. Petitioner has later filed an additional affidavit producing a copy of the certificate of marriage, screenshots of the alleged WhatsApp communications between the petitioner and the victim and also other documents to justify his contention that no offence as alleged had occurred. 11. I have considered the rival contentions. 12. Petitioner has a definite claim that he had married the victim on 12-04-2022 and later registered the marriage in accordance with law on 17-05-2022. He denies any physical relationship prior to the girl attaining majority. The photographs and the whatsapp communications allegedly exchanged between the petitioner and the victim prima facie reveal a cordial relationship. A petition for restitution of conjugal rights is seen filed by the petitioner as O.P. No.1863 of 2022 before the Family Court, Thiruvananthapuram, which is pending. 13. Petitioner had also filed W.P.(Crl.) No.847 of 2022 seeking for a writ of habeas corpus to produce the victim involved in this case, alleging that the said victim, after attaining majority, had solemnised B.A. No.6226/22 **-:7:-** the marriage with the petitioner on 12.04.2022 and the said marriage was registered in accordance with law. It is also seen recorded in the judgment dated 27.09.2022 that the petitioner contended that a false crime has been registered against him, alleging penetrative sexual assault on the alleged detenue when she was a minor and that she is being detained against her wishes. After considering the entire matter, the Division Bench of this Court dismissed the writ petition recording the submission of the detenue that she is not under any illegal detention and also that she does not wish to go along with the petitioner. The question regarding the validity or otherwise of the marriage was not gone into by this Court in the writ petition for habeas corpus, and the same was left open to be decided in appropriate proceedings. 14. Though the petitioner alleges that the marriage was conducted and was even registered, the victim alleges that the said marriage is not legally valid. Such a question will have to be decided in the pending matrimonial proceedings, and any observation by this Court at this juncture would prejudice the parties. Therefore, I refrain from entering into an observation regarding the validity of the marriage. Suffice it to say, in view of the presumption under the law that all official acts are done regularly, this court prima facie assumes the document of registration produced as Annexure P5 as evidence of B.A. No.6226/22 **-:8:-** marriage atleast for the purpose of this bail application. As mentioned earlier, the photographs produced as Ext.P2 also indicate, prima facie, some form of marriage performed between the parties. The WhatsApp communications allegedly exchanged between the petitioner and the victim, produced as Ext.P7, also indicate a very cordial and romantic relationship between the petitioner and the victim. Of course, these are all matters of evidence. 15. On an appreciation of the aforesaid documents produced and the circumstances mentioned, this Court is of the prima facie view that the allegation of rape has been put forth only after the alleged marriage was communicated to the parents of the victim. Since there is a semblance of a relationship existing between the parties, the allegation of rape, atleast after the victim attained the age of majority, can only be regarded as a consensual relationship. However, as regards the allegation of rape committed on 09.02.2022, the alleged conduct cannot be regarded as a consensual relationship since the victim was a minor. 16. Though the petitioner has a contention that the allegation of rape on 09.02.2022 is incorporated solely for the purpose of justifying a false case against the petitioner, I am of the view that those are matters which require interrogation. Since on 09.02.2022, the victim was only 30 days before attaining the age of majority and reckoning B.A. No.6226/22 **-:9:-** the circumstances of the subsequent alleged marriage between the parties, I am of the view that limited custody of the petitioner for the purpose of interrogation as stipulated in **Shri.Gurbaksh Singh Sibbia and Others v. State of Punjab** [(1980) 2 SCC 565] and **Sushila Aggarwal and others v. State (NCT of Delhi) and Another** [(2020) 5 SCC 1] would suffice. 17. I accordingly allow this bail application on the following conditions: - (a) Petitioner shall surrender before the Investigating Officer on 27.10.2022 and shall subject himself to interrogation for three days i.e., 27.10.2022, 28.10.2022 and 29.10.2022 from 9 a.m. to 6 p.m. and also on further days if the Investigating officer so requires. - (b) If after interrogation, the Investigating Officer proposes to arrest the petitioner, then he shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum before the Investigating Officer. - (c) Petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation. - (d) Petitioner shall not enter into the jurisdictional limits of Mannanthala Police Station until the conclusion of trial. - (e) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim or her family members, except for the purpose of the matrimonial proceedings and as directed by the Family Court. **-:10:-** B.A. No.6226/22 - (f) Petitioner shall not commit any similar offences while he is on bail. - (g) Petitioner shall not leave India without the permission of the Court having jurisdiction. 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, notwithstanding the bail having been granted by this Court. **BECHU KURIAN THOMAS JUDGE** vps