George Cheriyan v. State of Kerala and XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946 ``` ``` BAIL APPL. NO. 5299 OF 2024 ``` ``` CRIME NO.465/2024 OF MARADU POLICE STATION, ERNAKULAM PETITIONER/ACCUSED: ``` ``` GEORGE CHERIYAN, AGED 58 YEARS S/O. CHERIYAN, RESIDING AT CHEERANCAVIL VEEDU, NEDUMPAYIKULAM, KUNDARA P.O., EZHUKONE VILLAGE, KOTTARAKARA TALUK, KOLLAM DISTRICT, PIN - 691501 BY ADV H.PRAVEEN (KOTTARAKARA) ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV NAVANEETH D PAI`** ## **`OTHER PRESENT:`** ## **`SR PP SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.5299 of 2024 _-:2:-_ Dated this the 22[nd] day of July, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the sole accused in Crime No.465/2024 of the Maradu Police Station, Ernakulam, registered against him for allegedly committing the offences punishable under Sections 354-A, 354-B, 376 and 506 of the Indian Penal Code, 1860 (IPC). 3. The crux of the prosecution case is that: on 06.02.2024, at around 22 hours, the accused with an intention to sexually harass the de facto complainant, had gone to her rental premises and committed rape on her and outraged her modesty. Thus, the accused has committed the above offences. 4. Heard; Sri. Praveen H., the learned counsel appearing for the petitioner, Sri. C.S. Hrithwik, the ## B.A.No.5299 of 2024 _-:3:-_ learned Public Prosecutor and Sri. Navaneeth D Pai, the learned counsel appearing for the second respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The above crime has been registered on total misconception of fact by the second respondent. The petitioner and the second respondent have been maintaining a live-inrelationship and had consensual sexual intercourse. The petitioner has not committed rape of the victim as alleged by the prosecution. The second respondent has now filed Annexure A2 affidavit stating that she has no subsisting grievance against the petitioner and they have amicably settled all the disputes. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. B.A.No.5299 of 2024 _-:4:-_ 6. The learned Public Prosecutor, on instructions, submitted that the Investigating Officer has ascertained from the second respondent and recorded her statement, who has stated that she has no subsisting grievance against the second respondent. The Investigating Officer has ascertained and found out that the petitioner and the second respondent had a consensual relationship. 7. The learned counsel for the second respondent also submitted that the subject matter in dispute between the petitioner and the second respondent has been amicably settled and the second respondent has no subsisting grievance against the petitioner. The learned counsel vouched the signature and contents of Annexure A2 affidavit sworn in by the second respondent. He submitted that the second respondent has no objection in the application being allowed. 8. On an overall consideration of the facts, the B.A.No.5299 of 2024 _-:5:-_ rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that the subject matter in dispute between the petitioner and the second respondent has been settled out of court and the second respondent herself has stated that she had consensual sexual relationship with the petitioner and that she has amicably settled the disputes with the petitioner, I am satisfied that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I am inclined to allow the application; subject to the condition that he co-operates with the Investigating Officer. In the result, the application is allowed subject to the following conditions: (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. ## B.A.No.5299 of 2024 _-:6:-_ (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like amount each; (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. (iv) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the B.A.No.5299 of 2024 _-:7:-_ effect before said court within the said period; (vi)The petitioner shall not get involved in any other offence while on bail; (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And another** [2020 (1) KHC 663]. B.A.No.5299 of 2024 _-:8:-_ (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. SD/- **C.S.DIAS,JUDGE** rmm/22/7/2024