Midhun Raj v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 BAIL APPL. NO. 4042 OF 2024 ``` ``` CRIME NO.207/2024 OF KODUMON POLICE STATION, PATHANAMTHITTA AGAINST THE ORDER/JUDGMENT DATED 08.05.2024 IN CRMP NO.1359 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,PATHANAMTHITTA PETITIONER/ACCUSED: ``` ``` MIDHUN RAJ, AGED 28 YEARS S/O RAJAN PILLAI, RAJA SUDHA, NORTH MYNAGAPPALLY.P.O,MYNAGAPPALLY, KOLLAM DISTRICT, PIN - 690519 ``` ``` BY ADVS. K.K.SETHUKUMAR NISHA MATHEW SARITHA G.R. SREEKRISHNADATH PANDARATHIL E.K. R.RAHUL MEENAKSHY V.S. PREETHY K. ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SMT. SEETHA S. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.4042 of 2024** ``` 2 ``` ## **Dated this the 18[th ] day of July, 2024 O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.207/2024 of the Kodumon Police Station, Pathanamthitta, registered against him for allegedly committing the offences punishable under Sections 450, 366, 376, 376(2)(n) of the Indian Penal Code. The petitioner was arrested and remanded to judicial custody on 03.05.2024. However, by order dated 28.5.2024, the petitioner was enlarged on interim bail for the purpose of solemnizing his marriage with the victim. 2. The prosecution allegation is that; during the month of May,2021, the accused had trespassed into the house of the de facto complainant and committed rape on **B.A. No.4042 of 2024** ``` 3 ``` her by promising that he would marry her. Thereafter, on 12.7.2021 and 13.7.2021, the accused repeatedly committed rape on the victim, but the accused failed to keep up his promise to marry the victim. Thus, the accused has committed the above offences. 3. Heard; Sri.K.K. Sethukumar, the learned counsel appearing for the petitioner and Smt. Seetha S. the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is innocent of the accusations levelled against him. He has been falsely implicated in the crime. In fact, the petitioner and the victim had a consensual relationship. Therefore, the offence under Section 376 of the IPC will not be attracted to the facts of the case. Now, the petitioner and the victim have got their marriage solemnized on 01.07.2024 as per the provisions of the Special Marriage ``` 4 ``` ## **B.A. No.4042 of 2024** Act. Therefore, with effect from 01.07.2024, the victim is the wife of the petitioner. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to show that the petitioner has committed the offences. Merely because the petitioner has married the victim, the same cannot be treated as a ground to enlarge the petitioner on bail. Nonetheless, she did not dispute the fact that the marriage between the petitioner and the victim was solemnized on 01.07.2024 before the Marriage Officer, Adoor, Pathanamthitta as per the provisions of the Special Marriage Act. She also made available the statement of the victim, wherein the victim has stated that she has married the petitioner and has no objection in the petitioner being enlarged on bail. 6. The prosecution allegation against the petitioner ``` 5 ``` ## **B.A. No.4042 of 2024** is that, he repeatedly committed rape on the victim and outraged her modesty. Even though the petitioner was arrested and remanded to on judicial custody 03.05.2024, by interim order dated 28.5.2024, this Court enlarged the petitioner on interim bail for the purpose of getting married to the victim. It is now reported that the petitioner and the victim have got married, as referred to above. 7. On an overall consideration of the peculiar facts and circumstances of the case, the materials placed on record, and taking note of the fact the petitioner and the victim have now got married and are living as husband and wife, I am of the firm view that the interim bail order can be made absolute. Hence, I am inclined to allow the bail application, but subject to additional conditions. ``` 6 ``` ## **B.A. No.4042 of 2024** (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when directed; (ii) 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 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 ``` 7 ``` ## **B.A. No.4042 of 2024** 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) 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. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (vii) 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 ``` 8 ``` ## **B.A. No.4042 of 2024** 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].** **SD/-** **C.S.DIAS, JUDGE** rmm/18/7/2024