Firoz V.A. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** ## **Bail Appl..No.8446 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 2376/2019 DATED 14-11-2019 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **CRIME NO.588/2019 OF Binanipuram Police Station , Ernakulam** ## **PETITIONER/ACCUSED:** **FIROZ V.A., AGED 31 YEARS S/O.ABDUL HAMEED, 5/322, VALIYAPARAMBU, MATTANCHERRY, KOCHI - 682 002.** **BY ADVS. SRI.S.SUDHISH KUMAR SRI.K.B.DAYAL SRI.SIBI KARUN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **BY ADVS. SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. No. 8446 of 2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------ B.A. No. 8446 of 2019 -----------------------------------Dated this the 2[nd] day of December, 2019 ## **O R D E R** The petitioner herein has been arrayed the sole accused in the instant Crime No.588 of 2019 of Binanipuram Police Station, Ernakulam, registered for the offences punishable under Secs. 376, 376(2)(n), 406 and 420 of the IPC. The said case has been initially registered as crime No.1110/2019 of Mattanchery Police Station for the very same offences on the basis of the F.I Statement given by the lady defacto complainant on 20-09-2019 at 5.00 p.m, in respect of the alleged incidents, which happened for the period from 2016 onwards. Thereafter the said crime has been transferred and re-registered as the abovesaid crime No.588/2019 of Binanipuram Police Station as above stated. As the major incidents happened within the limits of the said Binanipuram Police Station. 2. The brief of the prosecution case as stated in the F.I Statement is that the lady defacto complainant in this case aged 39 years, is a divorcee having a daughter aged 16 years and son aged 15 years, and that she developed intimacy with the petitioner/accused B.A. No. 8446 of 2019 3 and since October 2015 and thereafter in 2016 he had assured and promised her that he would marry her and pursuant to the said promise she started openly living with the petitioner/accused under the same roof for three and half years along with her two children. That misusing the said intimacy the petitioner has taken money from her and purchased a scooter, bullet motor cycle and furniture, and he had also taken moneys from her and later the lady defacto complainant came to know that he has cheated her as he is intending to marry some other woman and that thereby the petitioner has committed the abovesaid offence. 3. The learned counsel for the petitioner would point out that the abovesaid allegations of committing forcible sexual intercourse etc., are absolutely wrong and fabricated and further that the lady defacto complainant was extracting money from the petitioner and that the petitioner was constrained to file Anx.A1 complaint dated 11-06-2019 before the SHO, Mattachery, that she had taken huge amounts of personal loan from him and when he later demanded it, she threatened that she is not only repaying but also that she would raise false allegations against him and would ensure that his proposed marriage is also scuttled. That Anx.A2 dated 12-06-2019, is B.A. No. 8446 of 2019 4 copy of the receipt issued by the Mattanchery Police Station evidencing the receipt of Anx.A1 complaint. Further that the petitioner has also constrained to file Anx.3 civil suit as O.S No.241/2019 before the Muniffs Court, Kochi on 15-06-2019, in which the lady defacto complaiant herein has been arrayed as defendant and the petitioner has sought for injunction against her so as not to obstruct the conduct of the marriage of the petitioner with another lady. That it is only on account of the said action taken by the petitioner as per Anx.A1 and A3 that the lady has now filed the instant FIS as late as on 20-09-2019 raising the false allegations and that too in respect of the events that have taken place more than three years back. Further it is pointed out that the long delay of more than three years has not been explained by the prosecution in any manner and therefore the impugned criminal proceedings are fatally vitiated on account of long and unexplained delay and very credibility and believability of the prosecution case in that stage. Further that even if assume for a moment that the incidents narrated in the FIS are broadly true and that it can be seen that the same would have happened only on the basis of consent and not otherwise as the lady has openly stated that she was openly living with the petitioner that B.A. No. 8446 of 2019 5 the lady, the divorcee and who belongs to religious community other than that of the petitioner has been openly living with him for the last three and half years under the same roof and that too along with her teenaged children. That therefore the allegations made in FIS that the petitioner/accused had indulged in 'forcible sexual intercourse' without her consent is absolutely unbelievable and lacks credibility and the incidents could have happened only on the basis of consent between the parties and not otherwise. Therefore, none of the vital ingredients of the offence of rape as per Sec.376 of the IPC are made out. 4. The learned counsel for the petitioner would also place relies on various decisions in the Apex Court in various High Courts including this Court, wherein it has laid down about the clear distinction between rape and consensual sexual relationship and that the acknowledged consensual physical relationship between the parties would not constitute an offence under Sec.376 of the IPC. It has also been held that breach of promise to marry in such cases will not by itself lead to a scenario, whereby it can be held that the consent of the woman to undergo sexual relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. B.A. No. 8446 of 2019 6 5. Accordingly, the learned counsel for the petitioner would thus argue that the the plea this Court may grant anticipatory bail to the petitioner subject to any stringent conditions. 6. The learned Prosecutor has seriously opposed the plea for anticipatory bail and has also pointed out that the investigation is at the threshold on stage and further that in all likelihood, the petitioner may intimidate and influence the witnesses, more particularly, the lady victim, if he is let out on bail. This is rebutted by the learned counsel for the petitioner and would point out that the materials of sterling quality like Anx.A1 complaint dated 11-06-2019 filed by the petitioner before the SHO, Mattanchery, as evident from Anx.A2 receipt as well as Anx.A3 civil suit filed on 15-06-2019 would make it clear like the daylight that it was the petitioner who was forced to get protection from the snares of the lady and not otherwise that there is no question of the petitioner even going anywhere near the vicinity of the residence of the lady defacto complainant etc,. 7. After hearing both sides and after careful evaluation of the facts and circumstances of this case, and more particularly, testing the facts of the case in the light of abovesaid judicial precedents, which has laid down the substantial and vital distinction between B.A. No. 8446 of 2019 7 rape and consensual sexual intercourse of the parties, and taking into account the long and unexplained delay in this case and other attendant circumstances, this Court is inclined to take the view that the custodial interrogation of the petitioner may not really necessary or warranted for the smooth and effective conduct of the investigation in this crime. However taking note of the apprehension raised by the prosecution regarding the possibility of the petitioner intimidating and influencing the witnesses, more particularly, the lady defacto complainant etc., it is ordered as safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station, where the lady defacto complainant is residing until the completion of the trial, subject to certain exceptions, which will be dealt with hereinafter. 8. The learned counsel for the petitioner would point out that the petitioner is permanently residing at Mattanchery, which is within the limits of the Mattachery Police Station, whereas the lady is residing at Kongorpilly, which is within the territorial limits of the Binanipuram Police Station. 9. Accordingly, It is ordered that in the event of the petitioner B.A. No. 8446 of 2019 8 being arrested in connection with crime No.588/2019 of Binanipuram Police Station, then the petitioner shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Forty Thousand only) and on furnishing two solvent sureties for the like sum, both to the satisfaction of the Investigating Officer concerned. However, the grant of bail shall be subject to the following conditions: _i. The petitioner shall report before the investigating officer as and when required in that connection._ _ii. The petitioner will fully co-operate with the Investigating Officer in the conduct of the above interrogation process._ _iii. The petitioner should also co-operate with the Investigating Officer in the conduct of any potency test, if it is so insisted by the Investigating Officer._ - _iv. The petitioner shall not involve in any criminal offences of similar nature._ - _v. The petitioner shall not enter into or reside anywhere within the limits of the Police Station where the lady defacto complainant is residing until the conclusion of the trial process, except for the limited purpose of reporting before the Investigating Officer in this case or in any other crimes and for attending to any courts in connection with this case or any other cases or for contacting his advocate/lawyer, etc._ - _vi. However, if there is any emergent and genuine reasons for the petitioner to go to that area, then he may do so, but only with prior permission of the Investigating Officer concerned._ B.A. No. 8446 of 2019 9 10. If there is any violation of the above said conditions by the petitioner, then the jurisdictional court concerned will stand hereby empowered to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS