NIBIN KHAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944** **BAIL APPL. NO. 1318 OF 2022** **CRIME NO.258 OF 2022 OF KOTTAYAM WEST POLICE STATION** ## **PETITIONER/ACCUSED:** **1 NIBIN KHAN AGED 21 YEARS, SON OF YOOSUF, KAROTTUPARAMBIL, ARUVITHARA PO, EERATTUPETTA, KOTTAYAM DISTRICT KOTTAYAM PIN - 686122** **2 YOOSUF AGED 50 YEARS, SON OF MUHAMMED KHAN, KAROTTUPARAMBIL, ARUVITHARA PO, KOTTAYAM DISTRICT PIN - 686122** **3 ANEESHA AGED 43 YEARS, WIFE OF YOOSUF, KAROTTUPARAMBIL, ARUVITHARA PO, KOTTAYAM DISTRICT PIN - 686122** **4 FATHIMA YOOSUF AGED 20 YEARS, WIFE OF UMAR FAROOQ, KAROTTUPARAMBIL, ARUVITHARA PO, KOTTAYAM DISTRICT PIN - 686122** **BY ADVS. SRI.P.N.SUKUMARAN SRI.P.VIJAYA BHANU (SR.)** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** B.A. No.1318/22 **-:2:-** **ERNAKULAM, PIN - 682031** - **2 SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION MUTTAM PO, THODUPUZHA, IDUKKI DISTRICT PIN - 685587** - **3 SUPERINTENDENT OF POLICE, KOTTAYAM PIN - 686661** - ***4 "XXX"** **(ADDL. R4 IS IMPLEADED AS PER ORDER DATED 14/06/2022 IN CRL.M.A.NO.1/2022) BY SRI.K.A.NOUSHAD, PUBLIC PROSECUTOR SRII.K.A.HASSAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON 30.06.2022 PASSED THE FOLLOWING:** B.A. No.1318/22 ## **-:3:-** ## **BECHU KURIAN THOMAS, J. -------------------------------B.A. No.1318 of 2022 ---------------------------------** Dated this the 30[th] day of June, 2022 ## **ORDER** Apprehending arrest in a crime alleging commission of non-bailable offences, petitioners have approached this Court under section 438 of the Code of Criminal Procedure, 1973 seeking pre-arrest bail. 2. First petitioner is the son of petitioners two and three while the fourth petitioner is their daughter. They are accused Nos.1, 4, 2 and 3 respectively in Crime No.258 of 2022 of Kottayam West Police Station. The offences alleged against the petitioners are under sections 376, 376(2)(n), and section 312 read with section 34 of the Indian Penal Code, 1860. 3. The prosecution alleges that the first petitioner was in love with the 22 year old victim from 2019 onwards and, under the promise of marriage, he committed sexual assault on 11.12.2020 and again on 18.12.2020 and for three days from B.A. No.1318/22 ## **-:4:-** 15.09.2021. He also had sexual relationship allegedly with the victim at various places including at an apartment in Ernakulam and that from 20.12.2021 till 27.12.2021, he induced the victim to indulge in sexual relationship after taking her to Kulu-Manali and Delhi and on the way back repeated the sexual acts at Ernakulam thereby resulting in the victim becoming pregnant. According to the prosecution, under threats of suicide, the first petitioner forced the victim to undergo abortion while petitioners 2 to 4 abetted the offence by falsely promising to perform the marriage of the victim with the first petitioner if the abortion is carried out. Thereafter the first petitioner compelled the victim to consume certain drugs which induced termination of pregnancy, thereby the accused together committed the offences alleged against them. 4. Learned Senior Counsel Sri.P.Vijayabhanu, assisted by Sri.P.N.Sukumaran, learned counsel for the petitioners contended that the entire prosecution case as against the petitioners are false and that no offence as alleged against them will lie. The learned Senior Counsel further argued that even if the allegations of the prosecution are assumed to be correct for argument sake, still it can only lead to a conclusion of B.A. No.1318/22 **-:5:-** consensual relationship and not an offence of rape. It was also pointed out that the willingness of the victim to indulge in a sexual relationship with the first petitioner is evident from the repeated travel she allegedly made with the first petitioner to various places including Kulu-Manali, Delhi and Ernakulam from her place of residence. He also contended that in any event, petitioners 2 to 4 had absolutely no role either in the alleged rape nor in the offence under section 312 IPC and that arraying them as accused is only for the purpose of pressurising the first petitioner and to coerce him into a marriage. The learned counsel relied upon several reported decisions including those in **Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra and Others** (2019 (1) KHC 403), **Pramod Suryabhan Pawar v. The State of Maharashtra and Ors.** (MANU/SC/1142/2019), **Ranjith v. State of Kerala** (2022 (1) KHC 195) and **Anilkumar v. State of Kerala and Others** (2021 (1) KHC 435). 5. Sri.K.A.Noushad, learned Public Prosecutor on the other hand vehemently objected to the grant of anticipatory bail and pointed out that the offences alleged against the petitioners are serious in nature, requiring custodial interrogation. It was B.A. No.1318/22 ## **-:6:-** further submitted that though the first petitioner is only 21 years in age, he had been indulging in a sexual relationship with the victim after promising to marry her, from 2019 onwards and therefore, no leniency ought to be shown by the Court. It was also submitted that the petitioners had caused miscarriage and that the circumstances could be elicited only through custodial interrogation. 6. Sri.K.A.Hassan, learned counsel appearing for the victim contended that the first petitioner had cleverly manipulated the victim with the promise of marriage and had repeatedly indulged in sexual relationship under the guise of that promise and that after cohabiting with her for several days, he suddenly turned around and backed out from the promise of marriage, that too, when the victim became pregnant. In an attempt to avoid the possibility of her marriage, the petitioners had even compelled the victim to abort the pregnancy, thereby committing the offence under section 312 of the Indian Penal Code. According to learned counsel for the victim, petitioners do not deserve any leniency for the grant of pre-arrest bail. 7. I have considered the rival contentions and have perused the case diary. B.A. No.1318/22 ## **-:7:-** 8. The first petitioner is alleged to have committed repeated sexual intercourse with the victim on various occasions at various places after promising to marry. Subsequently when the victim allegedly became pregnant, petitioners are alleged to have caused forceful miscarriage by compelling the victim to consume some drugs. As per the prosecution case, the first petitioner is alleged to have committed an overt act causing the miscarriage. The aforesaid circumstances compel this Court to conclude that the custodial interrogation of the first petitioner is necessary to unravel the circumstances arising in the case. In view of the aforesaid, I am not inclined to grant anticipatory bail to the first petitioner. The decisions cited by the learned Senior Counsel are not relevant especially in the light of the circumstances relating to the offence under section 312 IPC. 9. However as far as petitioners 2 to 4 are concerned, they stand on a different footing. They are parents and sister of the first petitioner. Taking note of the circumstances, I am of the view that limited custodial interrogation of petitioners 2, 3 and 4 are required. 10. Accordingly, this bail application relating to petitioners 2, 3 and 4 shall stand allowed on the following conditions. B.A. No.1318/22 ## **-:8:-** - (i) Petitioners 2, 3 and 4 shall appear before the Investigating Officer on 06.07.2022 and shall subject themselves to interrogation. - (ii) If after interrogation, the Investigating Officer proposes to arrest petitioners 2, 3 and 4, then, they shall be released on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum before the Investigating Officer. - (iii)Petitioners 2, 3 and 4 shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation. - (iv)Petitioners 2, 3 and 4 shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence or contact the victim or her family members; - (iv) Petitioners 2, 3 and 4 shall not commit any offence while they are on bail. - (v) Petitioners 2, 3 and 4 shall not leave India without the permission of the Court having jurisdiction. 11. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court. 12. In view of the above, the bail application pertaining to B.A. No.1318/22 **-:9:-** the first petitioner is dismissed while that of petitioners 2 to 4 are allowed as above. Sd/- **BECHU KURIAN THOMAS JUDGE** vps /True Copy/ PS to Judge