Jafar P. v. State of Kerala; Jarjeesh v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 27TH DAY OF MARCH 2023 / 6TH CHAITHRA, 1945 ``` ## `BAIL APPL. NO. 2153 OF 2023` ``` [CRIME NO.21/2023 OF FEROKE POLICE STATION, KOZHIKODE] ``` ## `PETITIONER/ACCUSED NO.1:` ``` JAFAR P., S/O.ABOOBACKER, AGED 38 YEARS ASJA HOUSE KALLIKKUDAM, FAROKE, KOZHIKODE NOW RESIDING AT RAJAN’S FLAT NO.13, KARINKALLAI, RAMANATTUKARA POST, KOZHIKODE, PIN - 673631 BY ADVS. B.RAMAN PILLAI (SR.) R.ANIL SUJESH MENON V.B. T.ANIL KUMAR THOMAS ABRAHAM (NILACKAPPILLIL) THOMAS SABU VADAKEKUT MAHESH BHANU S. RESSIL LONAN ``` ## `RESPONDENTS/STATE AND DEFACTO COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2REEHA T., AGED 32 YEARS, D/O.MUHAMMED, THUPPATHIL, TANALUR, MALAPPURAM DISTRICT, PIN - 676307 BY ADVS. R1 BY SRI.S.U.NAZAR, SPL.GOVT.PLEADER (CRIMINAL) R2 BY P.VIJAYA BHANU (SR.)(K/421/1984) ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20.03.2023, ALONG WITH Bail Appl..1134/2023, THE COURT ON 27.03.2023 PASSED THE FOLLOWING: ``` B.A Nos. 2153 & 1134 of 2023 2 # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 27TH DAY OF MARCH 2023 / 6TH CHAITHRA, 1945 ``` ## `BAIL APPL. NO. 1134 OF 2023` ``` [CRIME NO.21 OF 2023 OF FEROKE POLICE STATION, KOZHIKODE] ``` ## `PETITIONER/ACCUSED NO.4:` ``` JARJEESH,AGED 35 YEARS, S/O ABOOBACKER, ASJA HOUSE, KALLIKUDAM, FEROKE, KOZHIKODE, PIN - 673631 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. ``` ## `RESPONDENTS/STATE:` ``` 1STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER FEROKE, POLICE STATION, KOZHIKODE CITY (CRIME NO.21/2023 OF FEROKE POLICE STATION, KOZHIKODE DISTRICT), PIN – 673008 ``` ``` R1 & R2 BY SHRI.S.U.NAZAR, SPL.GOVT.PLEADER (CRIMINAL) THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20.03.2023, ALONG WITH Bail Appl..2153/2023, THE COURT ON 27.03.2023 PASSED THE FOLLOWING: ``` B.A Nos. 2153 & 1134 of 2023 3 ## `O R D E R` Petitioners in these bail applications are accused Nos.1 and 4 in Crime No.21/2023 of Feroke Police Station, Kozhikode. B.A. No.2153/2023 is filed by the 1[st] accused, and B.A.No.1134/2023 is filed by the 4[th] accused. 2. The aforesaid crime was registered based on a complaint submitted by the 2[nd] respondent in B.A.No.2153/2023 alleging offences punishable under Sections 498A, 406, 377 and 354 r/w. Section 34 of the Indian Penal Code (IPC). The said crime was registered against four persons. The 1[st] accused is the husband of the defacto complainant, the 2[nd] accused is the mother of the 1[st] accused and the 3[rd] and 4[th] accused are siblings of the 1[st] accused. 3. The allegations against the accused persons are as follows: The marriage between the 1[st] accused and the defacto complainant was solemnized by performing Nikah on 30.5.2011, and thereafter the defacto complainant was taken to the residence of the 1[st] accused on 18.12.2011. Since then, the defacto complainant has been living in the said residence along with the 1[st] accused and the 2[nd] accused. In the said wedlock, two children aged 9 and 6 years were born to them. It is alleged that, at the time of marriage, the parents of the defacto B.A Nos. 2153 & 1134 of 2023 4 complainant had given 50 sovereigns of gold, which was weighed by the 1[st] accused after the marriage. Thereafter, the 1[st] accused and his parents used to raise complaints that the gold given to her was not adequate. They used to illtreat the defacto complainant mentally and physically, demanding more gold as dowry. It was also alleged that, out of the 50 sovereigns of gold, 30 sovereigns were already sold by the 1[st] accused and his parents and thus misappropriated. It is also alleged that, besides the cruelty based on the demand of dowry, the defacto complainant was also subjected to sexual harassment at the instance of the 1[st] accused. According to her, the 1[st] accused used to have sexual intercourse against the order of nature by carrying out anal intercourse. The defacto complainant further stated that such kind of sexual intercourse was excruciating and when she objected to the same, she was assaulted. On 7.1.2023, a dispute arose between the 4th accused and the defacto complainant in connection with opening the gate of the house where the defacto complainant was residing. It is alleged that, the 4[th] accused slapped the face of the defacto complainant, caught hold of her neck and also forcibly pressed on her breast with an intention to outrage her modesty. It is also alleged that the 2nd and 3rd accused also committed ill-treatment of the defacto complainant by demanding more dowry, thereby committing the offences. The complaint was submitted in such B.A Nos. 2153 & 1134 of 2023 5 circumstances. Earlier, the accused persons submitted Crl.M.C.No.102/2023 before the Sessions Court, Kozhikode, seeking anticipatory bail and the same was disposed of on 25.01.2023 as per Annexure-4. As per the same, anticipatory bail was granted to the accused Nos.2 and 3, but the prayer sought by the 1[st] and 4[th] accused were dismissed. These applications were submitted by the accused Nos.1 and 4, in such circumstances seeking pre-arrest bail. 4. Heard Sri. B. Raman Pillai, the learned Senior counsel appearing for the petitioner in B.A.No.2153/2023, Sri. S. Rajeev, the learned counsel for the petitioner in B.A.No.1134/2023 and Sri. S.U. Nazar, the learned Special Government Pleader (Criminal Matters) appearing for the State in both these bail applications and Sri. P.Vijaya Bhanu, the learned Senior Counsel appearing for the defacto complainant in this case. 5. The learned counsel appearing for the 1[st] accused contends that the complaint submitted against the 1[st] accused was with false allegations with the sole intention to harass the 1[st] accused. The learned Senior Counsel places reliance upon Annexure-3 complaint submitted by the 1[st] accused before Mahal Qatheeb, President and representatives of Nadakkavu Juma Masjid, Tanur, wherein the grievances of the 1[st] accused in connection with the matrimonial relationship between the 1[st] accused and the defacto complainant are B.A Nos. 2153 & 1134 of 2023 6 mentioned. It is pointed out that, right from the inception, the defacto complainant was not at all cooperative and used to make complaints about the other family members of the 1[st] accused, and the words used by her to describe the parents of the 1[st] accused were very bad. It is further contended that, even though the 1[st] accused had taken a rented house for living separately from his family members, the defacto complainant was not at all willing to join him. Instead, she preferred to stay along with the family of the 1[st] accused. It is further pointed out that the defacto complainant used to state repeatedly that the family members of the 1[st] accused would be taken to task. By placing reliance upon the same, it is pointed out that the disputes which arose between the parties on account of the indifferent attitude of the defacto complainant, and it ultimately ended up in submitting complaints with false allegations against the 1[st] accused. 6. The learned counsel appearing for the 4[th] accused in B.A.No.1134/2023 supported the contentions put forward by the learned Senior Counsel. It is contended that as far as the allegations against the 4[th] accused are concerned, the same would not attract the offence under Section 354 IPC. According to him, even if it is assumed for the sake of the argument that the defacto complainant was assaulted by the 4[th] accused, that by itself cannot be a ground to assume that the offence under Section 354 of the IPC has been B.A Nos. 2153 & 1134 of 2023 7 attracted. For the said purpose, the assault must have been committed by the accused with the intention to outrage the modesty of the woman or with the knowledge that such acts are likely to result in outraging her modesty. In this case, no such circumstances are in existence. The incident was only a scuffle between the defacto complainant and the 4[th] accused, and no serious injuries were also sustained by the defacto complainant. Hence, only bailable offences are attracted, contends the learned counsel. The learned counsel also relies on the decision reported in **Kahkashan Kausar @ Sonam and Others v. State of Bihar and Others [(2022)6 SCC 599] and Preeti Gupta and Ors. v. State of Jharkhand and Ors.[(2010)7 SCC 667]** and a decision rendered by the Bombay High Court in **Rajesh Swarupchand Kankaria and Ors. v. the State of Maharashtra [MANU/MH/0447/2017.** 7. The learned Special Government Pleader (Criminal Matters) vehemently opposed the prayer sought in both bail applications. The learned Government Pleader contends that the statement of the victim was given before the police and also under section 164 of Cr.PC would reveal serious offences against the petitioners herein. As regards the allegations against the 1[st] accused are concerned, it is pointed out that, in the statement under section 164 Cr.PC, a clear description of the sexual assault committed by the 1[st] accused has been described, B.A Nos. 2153 & 1134 of 2023 8 which is sufficient to attract the offence under section 377 of IPC. So also, there is medical evidence suggesting the sexual assault against the order of nature. As far as the allegation against the 4[th] accused is concerned, the learned Special Govt. Pleader specifically contends that there is clear allegation against the petitioner assaulting the defacto complainant, and she sustained injuries due to such assault. The learned Special Govt. Pleader also places reliance upon the decision rendered by the Hon’ble Supreme Court in **Sumitha Pradeep v. Arun Kumar C.K. and Another [AIR 2022 SC 5705].** 8. The learned Senior Counsel appearing for the defacto complainant supports the contentions put forward by the learned Special Government Pleader. He further contends that the 1[st] accused is a person maintaining a male sexual partner. Right from the inception, the defacto complainant was being subjected to sexual assault against the order of nature, and the same has been clearly described in the statement given by the victim to the police. Besides the same, it was pointed out that, on account of the domestic violence that was committed by the accused persons against the defacto complainant, a complaint was submitted before the Judicial First Class Magistrate Court-V, Kozhikode under the provisions of the Protection of Women from Domestic Violence Act, which is numbered as M.C.No.2/2023. Considering the grievances highlighted by the B.A Nos. 2153 & 1134 of 2023 9 petitioner in the said M.C., the learned Magistrate has passed a protection order on 17.01.2023 CMP No. 167/2023 IN M.C.No.2/2023 restraining the accused persons herein under Section 18(A) of the said Act from committing any violence both mentally and physically. However, in utter violation of the same, two friends of the 1st and 4th accused trespassed into the house of the defacto complainant on 31.1.2023, knocked on the door and threatened them. In connection with the said incident, Crime No.106/2023 was registered by the Feroke Police, and the investigation is pending in connection with the same. Thus, it is pointed out that there are serious allegations against the petitioners in these bail applications, and the release of the petitioners on bail would cause serious prejudice to the investigation. Hence the learned Senior Counsel for the defacto complainant seeks for dismissal of the bail applications. 9. I have gone through the records and considered the contentions of all the parties concerned. One of the crucial allegations against the 1st accused relates to the offence under section 377 of IPC. I have carefully scrutinised the statement of the victim given under section 164 Cr.PC and it reveals brutal sexual assault on the part of the 1st accused against the order of nature. The specific allegation against the 1st accused in this regard is that the 1st accused always preferred anal sex even though the same was very B.A Nos. 2153 & 1134 of 2023 10 painful to the defacto complainant. The fact that the defacto complainant was subjected to anal sex is evident from the medical reports available on record. In the order passed by the Sessions Judge in the bail application submitted by the accused persons, the said report was explicitly referred to. A copy of the said medical records was also made available by the learned Special Govt. Pleader before this Court. It is discernible that, in the certificate issued by the Casualty Medical Officer, Government Women and Children Hospital, Kozhikode, the doctor could find evidence of fungal infection in the intergluteal cleft (cleft between two buttocks) and this prima facie indicate the regular anal sex. Besides the same, a clear description of the manner in which forcible sexual acts were performed upon the defacto complainant by the 1st accused is made in the statement of the defacto complainant. When considering the aforesaid aspects, I am of the view that such allegations cannot be treated lightly, and it reveals the offence under section 377 IPC. It is true that the offence under section 377 would not be attracted if the same is performed on mutual consent between the parties. However, the victim's statement would indicate that at no point of time she had given consent for the same, and it was performed against her will and wish. The learned Senior Counsel appearing for the 1st accused raised a contention that the marriage between the parties was in the year 2011 and till such B.A Nos. 2153 & 1134 of 2023 11 time, no complaint has been submitted by the defacto complainant in connection with the same, and therefore the same has to be discarded as such. However, I am not inclined to accept the said contention. There is indeed delay in reporting the matter. However, I am of the view that, as far as sexual offences are concerned, an allegation cannot be simply discarded merely because of the reason that there was a delay in reporting the matter. A different yardstick is to be applied as far as sexual offences are concerned, particularly when it is between spouses. In this case, the aforesaid aspect was committed during the matrimonial relationship and under normal circumstances, taking into consideration the various aspects such as privacy, the integrity of the family, and the impact which may cause upon the children on account of such allegations etc. could be the reasons which compel the victim not to disclose the offence immediately after the commission of such acts. Therefore, I do not find the contentions raised by the learned Senior counsel with regard to the delay in reporting the matter as legally tenable. With regard to the medical evidence, the learned counsel specifically contended that the existence of fungal infection in the intergluteal cleft cannot by itself lead to an inference of anal intercourse, as it can occur due to many other reasons, including unhealthy and unhygienic factors. I am not inclined to accept the said contention. I am of the view that the B.A Nos. 2153 & 1134 of 2023 12 aforesaid medical evidence, coupled with a specific statement of the victim, would make out a prima facie case in this regard. However, a conclusion with respect to the same cannot be arrived at this stage since the matter is under investigation. 10. Regarding the evidence under section 498A, the learned counsel for the petitioners rely on the decision in **Kahkashan Kausar's** case (supra) wherein it was observed that omnibus allegations made in the course of the matrimonial dispute have to be dealt with cautiously. However, I am of the view that even if the principles laid down by the Hon'ble Supreme Court are taken into consideration, in view of the specific allegations against the 1st accused, the aforesaid principles cannot be made applicable to the fact of this case. This is particularly because the aforesaid observations are with respect to the offence under section 498A of IPC, whereas in this case, there are other allegations against the 1[st] accused for attracting the offence under section 377 and 354 IPC, which are non-bailable offences. 11. The allegation against the 4th accused is that he assaulted the defacto complainant with the intention to outrage her modesty. I have carefully gone through the statement of the victim in this regard. It is seen from the said statements that the aforesaid incident appears to have occurred during the course of an exchange of words B.A Nos. 2153 & 1134 of 2023 13 between the parties. Obviously, the materials placed on record indicate a quarrel. In the statement of the victim, she herself stated that it started in connection with the opening of the gate to the residence of the defacto complainant. The learned counsel for the 4th accused places reliance upon the observations made by the High Court of Bombay in **Rajesh Swarupchand Kankaria's** case (supra). In the said decision, it was observed that merely because of the reason that a woman was assaulted by a person, an offence under section 354 IPC would not be attracted. To constitute an offence under section 354 IPC intention to outrage her modesty must be present, and such intention must be a culpable intention of the accused. The intention is a mental state of a person, and as such, it is difficult to procure direct evidence to prove the intention of the accused. Therefore, the question as to whether the accused had committed the said act with the intention to outrage the modesty or with the knowledge that the said act is likely to result in the outrage of the modesty of the victim, is to be decided based on the circumstances under which the incident had occurred. I am in complete agreement with the observations made in the said **Rajesh Swarupchand Kankaria's** case (supra). While applying the aforesaid principles in the facts of this case, it can be seen that, as observed above, the assault, which is the subject matter of the crime, occurred B.A Nos. 2153 & 1134 of 2023 14 during the course of a quarrel. Some aberrations on the body of the victim are indeed seen recorded in the medical report. However, when considering the entire sequence of events which led to the aforesaid assault, I am of the view that, the possibility that the same was committed without any intention to outrage her modesty cannot be ruled out. However, on this question also, no final conclusion can be reached at this stage as the matter is under investigation. But in my view, taking into account the aforesaid aspect, some orders for protecting the personal liberty of the 4[th] accused can be passed. 12. Thus, while considering the facts and circumstances, it can be seen that, as far as the allegations against the 1[st] accused are concerned, those are very serious in nature in view of the fact that the allegations indicate the commission of the offence under section 377 of IPC. However, as regards the 4[th] accused, the allegation against him is for committing assault on the defacto complainant. As observed above, there is some doubt as to whether the said acts were committed by the 4[th] accused with the intention to outrage the modesty of the defacto complainant or with the knowledge that such an act is likely to result in outrage of modesty of the defacto complainant. In such circumstances, the irresistible conclusion that can be arrived in these cases is that the application submitted by the 1[st] accused has to be dismissed, whereas the application submitted by B.A Nos. 2153 & 1134 of 2023 15 the 4[th] accused has to be disposed of directing him, to appear before the investigating officer for ensuring his cooperation with the investigation. In such circumstances, B.A.No.2153/2023 is hereby dismissed. B.A.No.1134/2023 is disposed of with the following directions: i) The petitioner/4[th] accused shall surrender before the Investigating Officer, within a period of two weeks from today, for subjecting himself to interrogation. ii) After interrogation, the petitioner/4[th] accused shall be released on bail on the very same day of surrender upon the petitioner/4th accused executing a bond for Rs.1,00,000/- (Rupees One Lakh only) with two sureties each for the like sum, to the satisfaction of the Investigating Officer iii) The petitioner/4[th] accused shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for the purpose of recovery, if any, as and when demanded. iv) The petitioner/4[th] accused shall appear before the Investigating Officer between 10.00 a.m. and 11.00 a.m. every Saturday until the filing of the final report. v) The petitioner/4[th] accused shall appear before the Investigating Officer as and when required. vi) The petitioner/4[th] accused shall not commit any offence of B.A Nos. 2153 & 1134 of 2023 16 like nature while on bail. vii) The petitioner/4[th] accused shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. viii) The petitioner/4[th] accused shall not leave the State of Kerala without the permission of the Jurisdictional Court. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ## pkk