Emmanvel Peter v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** **Bail Appl..No. 1735 of 2019** **CRIME NO. 3516/2017 OF Kollam East Police Station , Kollam** **PETITIONER/S:** **EMMANVEL PETER AGED 30 YEARS S/O.PETER JOSEPH KANNITTAYIL, ARAVILA KAVANAD.P.O, SAKTHIKULANGARA KOLLAM, KERALA-691003.** **BY ADV. C S SUMESH** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.3516/2017 OF KOLLAM EAST POLICE STATION)** **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: **Bail Appl..No. 1735 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------------B.A.No.1735 Of 2019 --------------------------------Dated this the 20[th] day of March, 2019. ## **O R D E R** The petitioner is the sole accused in Crime No.3516/2017 of Kollam East Police Station, which has been registered for offences punishable under Secs. 417, 420 & 376 of the I.P.C. Anx-A series are FIR & FIS in relation to the abovesaid Crime, which has been registered on 23.10.2017 at 22:00 hrs. The incidents alleged by the first informant-lady defacto complainant in Anx-A1 FIS are in respect of events which have allegedly taken place on 28.12.2014 and later on 22[nd] to 24[th] January, 2015 and some time in the Month of December, 2015. It is pointed out by the petitioner that the incidents in the FI Statement have been conveyed by the lady defacto complainant, which has led to the registration of the impugned Crime No.3516/2017 of Kollam East Police Station on 23.10.2017 at 22:00 hrs. 2. The petitioner had earlier approached this Court seeking anticipatory bail by filing B.A.No.8402/2017. At that point of time the petitioner was working abroad and the learned Public ::3:: **Bail Appl..No. 1735 of 2019** Prosecutor submitted before this Court that in view of the dictum laid down by the Apex Court in the case in _**Souda Beevi & anr. v. S.I.of Police & ors**_ ., reported in 2011 (4) KLT 52, a person, who is not in India and who does not visit India soon, may not have the locus to seek pre-arrest bail and accordingly this Court had dismissed the said Bail Application as per order dated 18.12.2017 presumably on the ground that the plea for pre-arrest bail at that stage is not maintainable. 3. It is pointed out by the petitioner's counsel that a mere reading of Anx-A1 FI Statement of the lady defacto complainant would show that the alleged incidents which have taken place on 28.12.2014, 22[nd] to 24[th] January, 2015 and December, 2015 are all alleged incidents wherein the lady defacto complainant had invited the petitioner to stay together in a hotel and that the relationship had arisen on account of love affair between the parties and the case of the lady defacto complainant is that the petitioner had promised her to marry and that she had consented on account of the promise made by the petitioner that he would marry her. That it can be seen even from the averments in the FI statement that the complaint of the lady defacto complainant is that later the ::4:: **Bail Appl..No. 1735 of 2019** petitioner had resiled from the promise to marry as his parents were not willing in their son marrying the said lady defacto complainant as she was then a serial actress, etc. 4. The learned counsel for the petitioner has invited this Court to various judicial precedents of the Apex Court and this Court, wherein it has been held that consensual relationship between the accused and the lady defacto complainant on account of promise to marry, etc., will not attract misconception of facts as envisaged in Sec.90 of the I.P.C., even if it is a false promise to marry, such a promise by itself will not give rise to misconception of facts as understood in Sec.90 of the I.P.C, as there is substantial distinction between rape as understood in Sec.376 of the I.P.C and consensual sexual relationship between the parties. That in the latter, where the prosecutrix has entered into consensual sexual relationship with the accused, which is discernible from the consistent conduct of parties, then in such a situation the offence of rape may not be disclosed, etc. {see _**Uday v. State of Karnataka**_ , reported in (2003) 4 SCC 46, _**Deelip Singh @ Dilip Kumar v. State of Bihar**_ , reported in (2005) 1 SCC 88, _**Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra & ors,**_ reported in (2019) 1 ::5:: **Bail Appl..No. 1735 of 2019** SCALE 64 = 2019 (1) KHC 403 (SC) and judgment dated 6.4.2018 of the Apex Court in in Crl.A.No.504/2018 in _**Shivashankar @ Shiva v. State of Karnataka & anr**_ .}. Further, more importantly, the petitioner would also point out to this Court that in the instant case, the delay in submitting the FI statement and registration of the Crime is approximately about 3 years (1029 days) and going by the dictum laid down by the Apex Court and various High Courts in _**Satpal Singh v. State of Haryana**_ , reported in 2010 (8) SCC 714, the delay would be fatal to the impugned proceedings, etc. 5. Taking note of the facts and circumstances of this case, more particularly, the judicial precedents in the matter of distinction between rape and consensual relationship and also the contention made by the petitioner on the basis of delay in the registration of the Crime, etc., and testing the facts of this case in the light of those judicial precedents, this Court is of the considered view that the custodial interrogation may not really be necessary and called for in this case. However, the petitioner will have to fully co-operate with the investigation process and should subject himself to interrogation process so that the Investigating officer will be able to conduct and complete investigation process ::6:: **Bail Appl..No. 1735 of 2019** in a fair and proper manner. Accordingly, the following orders and directions are passed: - _(i) The petitioner shall personally appear before the Investigating Officer in relation to Crime No.3516/2017 Kollam East Police Station at 10:00 a.m. on 10.4.2019 to subject himself for interrogation and for conduct of potency test, if so insisted by the Investigating Officer._ - _(ii) The Investigating Officer will conduct the interrogation on the same day. If the interrogation process is not completed on the same day, the Investigating Officer will be at liberty to direct the petitioner to appear before him for further interrogation on the next day or any day fixed by him, which the petitioner has to comply with._ - _(iii) After completing the above interrogation process, in case the Investigating Officer records the arrest of the petitioner, then he shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Fourty Thousand only) and on furnishing two solvent sureties for the like sum each to the satisfaction of the Investigating Officer concerned. Further it is also ordered that it will be subject to following conditions:-_ - _(a) The petitioner shall not involve in any criminal offences of similar nature._ - _(b) The petitioner shall fully co-operate with the investigation._ - _(c) The petitioner shall report before the Investigating Officer as and when required in that connection._ - _(d) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _(e) The petitioner shall not go anywhere near the residence or workplace of the lady defacto complainant until the conclusion of the trial in the impugned criminal proceedings._ - _(f) The petitioner will surrender his passport before the jurisdictional court below concerned and if he_ ::7:: **Bail Appl..No. 1735 of 2019** _does not have a passport, he will file an affidavit to that effect. In case the petitioner wants to travel abroad, then he should get prior permission of the competent court below concerned, who is hereby authorised to take decision on merits on such a plea._ - _(iv) If the petitioner does not comply with the directions issued by this Court to subject to the interrogation process, then the benefit of the directions issued by this Court will automatically stand vacated without any further orders of this Court._ If the petitioner violates all or any of the bail conditions, then the jurisdictional court concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law. With these observations and directions, the Bail Application stands disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::8:: **Bail Appl..No. 1735 of 2019**