Lt. Ramavath Sunil Nayak v. State of Kerala and Simran Bharadwaj

``` 2024:KER:74865 ``` **==> picture [58 x 57] intentionally omitted <==** ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 9[TH] DAY OF OCTOBER 2024 / 17TH ASWINA, 1946 ``` ``` BAIL APPL. NO. 7897 OF 2024 ``` ``` CRIME NO.326/2024 OF KADAVANTHRA POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER DATED 19.09.2024 IN CRMC NO.2711 OF 2024 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM ``` ## **`PETITIONER/ACCUSED:`** ``` LT. RAMAVATH SUNIL NAYAK, AGED 26 YEARS S/O RAMAVATH AMRU NAYAK, PLOT NO. 76, RAGHAVENDRA NAGAR COLONY, UPPAL, HYDERABAD, TELENGANA, PIN - 500039 ``` ``` BY ADVS. ASWIN GOPAKUMAR ANWIN GOPAKUMAR ADITYA VENUGOPALAN MAHESH CHANDRAN SARANYA BABU ANGITA T. MENON ABHISHEK S. TANYA KADEEJA ``` ## **`RESPONDENTS /STATE/COMPLAINANT:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 SIMRAN BHARADWAJ, AGED 23 YEARS`** ``` D/O AKHAND PRATHAP SINGH, MEPPILLY, 53/1695, VYTTILA, ERNAKULAM, PIN - 682019 ``` ``` 2024:KER:74865 ``` **==> picture [58 x 57] intentionally omitted <==** B.A.No.7897 of 2024 2 ## **`OTHER PRESENT`** ``` BY SMT. PUSHPALATHA. M.K SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` 2024:KER:74865 ``` B.A.No.7897 of 2024 3 **==> picture [58 x 57] intentionally omitted <==** ## **Dated this the 9[th ] day of October, 2024** ## **O R D E R** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, by the sole accused in Crime No. 326/2024 of the Kadavanthara Police Station, Ernakulam, which is registered against him for allegedly committing the offences punishable under Sections 69, 333, 126(2), 115(2) and 351(3) of the Bharatiya Nyaya Sanhita (‘the BNS’ for shot), 2023. The petitioner was arrested and remanded to judicial custody on 05.09.2024. 2. The prosecution case, in brief, is that; the accused made a false promise to marry the survivor and had sexual intercourse with her from July 2024. However, the accused did not keep up to his promise. Thereafter, on 23.08.2024, at around 23:00 hours, the accused trespassed into the house of the survivor, wrongfully restrained her and slapped her. Thus, the ``` 2024:KER:74865 ``` **==> picture [58 x 57] intentionally omitted <==** B.A.No.7897 of 2024 4 accused has committed the above offences. 3. Heard; Sri. Aswin Gopakumar, the learned counsel appearing for the petitioner and Smt. Pushpalatha. M.K, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. There is no material to substantiate the petitioner’s culpability in the crime. The petitioner and the survivor had a consensual sexual intercourse. Therefore, by no stretch of imagination can the offence under Section 69 of the BNS be attributed against the petitioner. In fact, the petitioner had taken the survivor along with him to his parents in Hyderabad, and they stayed together. In the conversation of the parents of the petitioner and the survivor, a decision was taken not to proceed with the marriage. Even after their return, the petitioner and the survivor had a consensual sexual intercourse. The petitioner is a Commissioned Officer in the Indian Navy. The petitioner does not have ``` 2024:KER:74865 ``` **==> picture [58 x 57] intentionally omitted <==** B.A.No.7897 of 2024 5 any criminal antecedents. The petitioner is willing to abide by any stringent condition that may be imposed by this Court and cooperate with the investigation. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner had sexual intercourse with the survivor on a false promise to marry her. Subsequently, when his parents stood against the marriage, and he withdrew from the proposal. Even though the investigation in the case is practically complete and the medical examinations have been conducted, there is every likelihood of the petitioner intimidating the survivor and tampering with the evidence. Moreover, it would send a wrong message to the society. Hence, the application may be dismissed. 6. On a careful scrutiny of the materials on record, it can be seen that the relationship between the petitioner and the survivor commenced in February **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:74865 ``` B.A.No.7897 of 2024 6 2024. The survivor has a case that the petitioner had promised to marry her, and it was in the said circumstances that she had sexual intercourse with the petitioner. However, after visiting the parents of the petitioner, the petitioner withdrew from the proposal. Thereafter, the petitioner trespassed into the house of the survivor and slapped her. Admittedly, the FIR has been filed only on 03.09.2024. There is no plausible explanation for the delay in registering the case. However, that is a matter to be investigated and decided after trial. ## 7. In **Pramod Suryabhan Pawar v. State of Maharashtra and another** [2019 (9) SCC 608], the Hon'ble Supreme Court observed thus: “18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to S.375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it ``` 2024:KER:74865 ``` **==> picture [58 x 57] intentionally omitted <==** B.A.No.7897 of 2024 7 was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.” ## 8. Similarly, in **Dr.Dhruvaram Murlidhar Sonar** ## **v. State of Maharashtra and others** [2019 AIR (SC) 327], the Hon'ble Supreme Court has held thus: “20. Thus, there is a clear distinction between rape and consensual sex. The Court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under S.376 of the IPC”. ``` 2024:KER:74865 ``` **==> picture [58 x 57] intentionally omitted <==** B.A.No.7897 of 2024 8 9. Likewise, in **Vishnu vs. State of Kerala** [2023 (4) KHC 1], this Court, after scrutinising all the earlier decisions on the point, has made a clear distinction between rape and consensual sex. It is held that unless there is an allegation or proof that the accused has given a false promise to marry the victim, the offence of rape cannot be attributed. The said legal principle has been reiterated by this Court in **X. vs. State of Kerala** [2022 KHC 296]. 10. The afore-cited decisions prescribe whether the accused had committed mere breach of trust or not in fulfilling his false promise is a matter that requires indepth consideration after trial. The fact remains that the petitioner has been in judicial custody for the last one month, the investigation in the case is complete, and the medical examinations have been conducted. Furthermore, the petitioner does not have any criminal antecedents. ``` 2024:KER:74865 ``` **==> picture [58 x 57] intentionally omitted <==** B.A.No.7897 of 2024 9 11. Recently, in **Manish Sisodia v. Directorate of Enforcement** [2024 INSC 595] the Honourable Supreme Court has observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From its experience, it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is the rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, the Honourable Supreme Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that “bail is the rule and jail is an exception”. 12. On a careful consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on comprehending the fact **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:74865 ``` B.A.No.7897 of 2024 10 that the petitioner has been in judicial custody for the last one month, the investigation in the case is complete, the petitioner does not have any criminal antecedents, and the medical examinations have been completed, I am of the firm view that the petitioner is entitled to be enlarged on bail. Hence, I am inclined to allow the bail application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.326/2024. (ii) The petitioner shall not directly or indirectly make any inducement or threat to the victim or her witnesses or to any person ``` 2024:KER:74865 ``` **==> picture [58 x 57] intentionally omitted <==** B.A.No.7897 of 2024 11 acquainted with the facts of the case, so as to dissuade them from disclosing such facts to the court or to any Police Officer, or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) The petitioner shall not enter the police station limits where the survivor is residing till the conclusion of the trial in Crime. No. 326/2024, other than for the purpose of reporting before the Investigating Officer; (vi) 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. (vii) Applications for deletion/modification of the bail conditions shall be moved and ``` 2024:KER:74865 ``` B.A.No.7897 of 2024 12 **==> picture [58 x 57] intentionally omitted <==** entertained by the court below. (viii) 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 petitioner even while the petitioner is 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].** (ix) 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, which shall be decided by the competent Court. **Sd/-** mtk/09.10.24 **C.S.DIAS, JUDGE** ``` 2024:KER:74865 ``` B.A.No.7897 of 2024 13 **==> picture [58 x 57] intentionally omitted <==** ## **`APPENDIX OF BAIL APPL. 7897/2024`** ## **`PETITIONER ANNEXURES`** ``` Annexure 1. TRUE COPY OF THE FIR ALONG WITH FIS IN CRIME NO. 326 OF 2024 OF KADAVANTHRA POLICE STATION, ERNAKULAM ``` ``` Annexure 2A TRUE COPY OF THE BAIL APPLICATION CRL. M.C. NO. 2711 OF 2024 FILED BEFORE THE HON’BLE DISTRICT AND SESSION’S COURT, ERNAKULAM ``` ``` Annexure 3TRUE COPY OF THE REMAND REPORT DATED 06.09.2024 IN CRIME NO. 326 OF 2024 ``` ``` Annexure 4TRUE COPY OF THE ORDER DATED 18.09.2024 IN CRL. M.C NO. 2711 OF 2024 ```