Ervin T. Joy v. State of Kerala (Bail Applications Nos. 321 & 327 of 2020)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941** ## **Bail Appl..No.321 OF 2020** **CRIME NO.1084/2019 OF NEDUMBASSERY POLICE STATION , Ernakulam** ## **PETITIONER/S:** **ERVIN T.JOY AGED 37 YEARS THENGUMPURAKKAL HOUSE, THADIYAMPADAUP.O. IDUKKI DISTRICT 685 602.** **BY ADV. SRI.P.A.MUJEEB** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY S.I. OF POLICE, NEDUMBASSERY AIRPORT POLICE STATION, ERNAKULAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 682 031.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.01.2020, ALONG WITH Bail Appl..327/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.321 & 327 OF 2020** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941 Bail Appl..No.327 OF 2020** **CRIME NO.612/2019 OF NEDUMBASSERY POLICE STATION , Ernakulam** ## **PETITIONER/S:** **ERVIN T.JOY AGED 37 YEARS THENGUMPURAKKAL HOUSE, THADIYAMPADU P.O, IDUKKI DISTRICT, PIN-685 602.** **BY ADV. SRI.P.A.MUJEEB** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY S.I. OF POLICE, NEDUMBASSERY POLICE STATION, ERNAKULAM THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.01.2020, ALONG WITH Bail Appl..321/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.321 & 327 OF 2020** **3** **ALEXANDER THOMAS, J. ----------------------------------------B.A. Nos. 321 & 327 of 2020 ----------------------------------------Dated this the 29[th] day of January, 2020** ## **O R D E R** Since the applicant in these two cases is the same person and he is facing similar allegations in these two crimes, which has led to the instant regular bail applications, the above applications are disposed of on the basis of the common order. 2. In B.A.No.321/2020, the applicant has been arrayed as the sole accused in crime No.1084/2019 of Nedumbassery Airport Police Station, which has been registered for the offences punishable under Secs.376(2) (n), 370 and 420 of the IPC. The crime has been registered on the basis of the FI statement given by the lady defacto complainant on 09.10.2019 at about 7.00 p.m., in respect of the alleged incidents which happened for the period from 27.02.2019 to 30.03.2019. The petitioner has been arrested in crime No.1084/2019 of Nedumbassery Airport Police Station on 22.10.2019 and after his remand, has been under detention since then. 3. The learned counsel appearing for the petitioner has submitted that even till date, the investigation agency has not completed the investigation and thus has not filed the final report/charge sheet in this case, even though the petitioner has been under custody for the last 99 **Bail Appl..No.321 & 327 OF 2020** **4** days. Hence, it is contended by the learned counsel for the petitioner that irrespective of the merits of this case, in any view of the matter, the petitioner has now secured the indispensable right to be secured under statutory default bail in view of the prescriptions contained in Proviso to Sec.167(2) of the Cr.P.C as the investigation agency has not been able to file final report/charge sheet within the permissible default period of 90 days from the date of remand of the petitioner/accused. 4. On being queried, the learned Prosecutor would submit that the investigation agency due to various exigencies in this case has not been able to complete investigation in its entirety. Therefore, it is only to be held that in respect of the petitioner's involvement in crime No.1084/2019 of Nedumbassery Airport Police Station, Ernakulam, the petitioner has now secured indispensable right to be released on statutory default bail in view of the prescriptions contained in proviso to Sec.167(2) of the Cr.P.C. and it is accordingly, declared and ordered. 5. The involvement of the petitioner herein in relation to case in B.A.No. 327/2020 is arising out of crime No.612/2019 of Nedumbassery Airport Police Station, which has been registered for offences punishable under Secs. 376(2)(n) and 420 of the IPC on the basis of the FI statement given by the lady defacto complainant therein on 22.05.2019 at about 9.00 p.m. in respect of the alleged incidents which happened from 29.04.2019 onwards. The petitioner has been arrested in that case on 19.09.2019 and **Bail Appl..No.321 & 327 OF 2020** **5** has been under detention for the last 132 days. 6. The prosecution case in short is that the lady victim aged 35 years is a divorcee and she is working abroad and she had put up a matrimonial advertisement in the news papers inviting responses in relation to her marriage proposal and the petitioner aged 37 years had responded to her matrimonial advertisement and informed her that he is also a divorcee and that his previous marriage was took place 12 years back and lasted only for about 3 months and thereafter he had secured divorce and further that, both of them started liking each other and the petitioner had assured her that he would marry her and they started living together and had sexual relationship on quite a few occasions and he had also taken Rs.60,000/- from her and her gold chain weighing 4 sovereigns. Later she came to know that the petitioner is a married man having children, whose marital relationship is still subsisting and that therefore, he had played fraud and thus consent to have sexual intercourse was obtained on the basis of fraudulent representation that he is a divorcee etc. It appears that the investigation in this case has been duly completed, and the final report/charge sheet has been duly filed before the competent criminal court on 30.11.2019. 7. The counsel for the petitioner would point out that the abovesaid allegations are false and baseless. Further that the investigation in this case has been duly completed, no effective purpose would be sub- **Bail Appl..No.321 & 327 OF 2020** **6** served by the continued incarceration of the petitioner, and in that mentality his continued detention may not be necessary and this Court may order to release him on regular bail subject to stringent conditions. 8. The learned Prosecutor has seriously opposed the plea for regular bail in this case and has pointed out that the allegations disclosed against the petitioner in this case are very serious and that the petitioner has also been arrayed in two other crimes of similar nature and modusoperandi of the petitioner is quite similar and that the petitioner has falsely represented his name and age and also falsely represented him as a divorcee, so as to gain confidence of the lady victims, who are also divorcees or unmarried ladies. Therefore, the consent of the woman to have sexual intercourse with the petitioner was obtained by him on the basis of the fraudulent representations. Therefore, the said consent is of no legal effect and hence the offence of rape is made out. 9. Further that, there is every possibility of the petitioner repeating the similar offences, if he is let out on bail and also there is strong possibility of the petitioner tampering with the evidences and influencing or intimidating witnesses, more particularly, lady victim in this case if he is let out on bail. 10. The learned counsel for the petitioner would point out that the petitioner has already suffered incarceration in this case for the last 132 days and that the petitioner has now secured right to be released on **Bail Appl..No.321 & 327 OF 2020** **7** statutory bail in respect of the involvement in crime No.1084/2019, which is the subject matter of B.A.No.321/2020. That both the lady victims in these two crimes are now abroad and there is no possibility of the petitioner in any manner influencing or intimidating the lady victims involved in these cases. 11. The learned Prosecutor would point out that modus-operandi of the petitioner is to create various email ids in his name and also have taken various mobile cell numbers and has been advertising in matrimonial websites representing that he is a divorced man and seeking matrimonial proposals from interested divorced ladies and unmarried ladies and has been successful enough to dupe the lady victim in the instant case and that there is strong possibility of the petitioner repeating the said offences. 12. After hearing both sides and after careful evaluation of the facts and circumstances of this case, more particularly, taking note of the crucial fact that the petitioner has already suffered incarceration in this case for the last 132 days and also the fact that the lady victim involved in this case is now abroad, the petitioner's counsel would point out that the petitioner is a married man having wife and children and there is none to look after and financially take care of the wife and children and also taking note of the plight of the wife and children of the petitioner and also the fact that the petitioner is even otherwise become entitled to be released on regular bail in crime No. 1084/2019 of the same police station etc., this Court is **Bail Appl..No.321 & 327 OF 2020** **8** inclined to take a humane view in the matter, so that further incarceration of the petitioner could be avoided and the petitioner could be released on regular bail, subject to stringent conditions 13. However, taking note of the abovesaid apprehension raised by the prosecution, it is ordered that the petitioner shall not enter into or reside anywhere within the territorial limits of the police stations, where the two lady victims involved in these cases are residing, in case they come to Kerala, until the conclusion of trial and also that the petitioner shall not advertise or respond in any matrimonial sites representing that he is an unmarried man and seeking marriage proposals from divorced ladies or unmarried ladies. The petitioner will have to report before the investigating officer (IO) at a stipulated time on all 2[nd] and 4[th] Saturdays, for a period of one year and thereafter, he will have to report before IO as and when required by the said IO. 14. Accordingly, it is ordered in both the bail applications that the petitioner shall be released in these two cases on the petitioner executing separate bonds for Rs.40,000/- each (Rupees Forty Thousand only) and also on his furnishing two separate solvent sureties in each of these two cases to the satisfaction of the competent court below concerned. However, the grant of bail will be subject to following conditions : - _i. The petitioner shall report before the Investigating Officer in these two crimes, at any time between 8.00 a.m. and 1.00 p.m. on every 2[nd] and 4[th] Saturdays, at any time between 10 am and 1 pm, for a further period of 1 year and thereafter he shall report before the investigating officer as and when directed by the said officer._ **Bail Appl..No.321 & 327 OF 2020** **9** - _ii. The petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence._ - _iii. The petitioner shall not commit any offence while on bail._ - _iv. The petitioner shall fully co-operate with the investigation._ - _v. The petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the lady victims in these two cases are residing, so long as they are residing in Kerala, 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. However, if the petitioner has any emergent need to visit the said area, he may do so, but only with the prior permission of the investigating officer concerned._ 15. However, it is made clear that so long as the lady victims in these cases are abroad, then the abovesaid restriction will not apply. The said condition would apply only if the lady victims reside anywhere in the State of Kerala. The petitioner shall immediately surrender his passport before the Jurisdictional Magistrate Court concerned within 7 days of his release. If he does not have the passport, he shall immediately file an affidavit before the said court stating about the abovesaid factum. 16. Further, the petitioner shall not advertise or respond in any matrimonial sites or in any news papers or social media that he is a divorced man (as long as he is a married man) so as to seek marriage proposals from interested divorced ladies or unmarried ladies. In that regard, it is also made clear that the petitioner shall not make any such wrong representations in any social media and emails for the abovesaid purpose. 17. So also the petitioner shall not commit any cognizable offences more particularly, the offences of similar nature and in case the **Bail Appl..No.321 & 327 OF 2020** **10** petitioner violates the said condition, the IO will immediately conduct a thorough enquiry of the same and thereafter, may immediately file an appropriate report along with the requisite application, before the Jurisdictional Magistrate court concerned seeking cancellation of the bail granted to the petitioner herein, upon which the said court shall stand hereby authorised to consider the said plea and pass appropriate orders thereon in accordance with law, after hearing the petitioner and also the prosecution. 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** ## **SKS**