NITHIN VARGHESE v. STATE OF KERALA AND VICTIM X

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** ## **Bail Appl..No.8489 OF 2019** **AGAINST THE ORDER IN CRL MC 810/2019 DATED 12-11-2019 OF SESSIONS COURT,THODUPUZHA** ## **PETITIONER/ACCUSED:** **NITHIN VARGHESE AGED 28 YEARS S/O. VARGHESE (LATE) KANNOTHUKUDY HOUSE, BISONVALLEY P.O, IDUKKI DIST.** **BY ADV. SRI.JOY C. PAUL** ## **RESPONDENT/S:** **1 STATE OF KERALA REP. BY CIRCLE INSPECTOR OF POLICE, KUMILY POLICE STATION BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 VICTIM X** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.8489/2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------B.A.No. 8489 of 2019 ---------------------------------------------Dated this the 13[th] day of December, 2019 ## **ORDER** The petitioner herein has been arrayed as the sole accused in the instant Crime No.458/2019 of Kumaly Police Station, which has been registered for offences punishable under Sections 376 and 420 of the IPC. The crime has been registered on the basis of the private criminal complaint filed by the lady de facto complainant on 26.10.2019 at about 7 p.m. in respect of the alleged incident which happened for the period from 1.4.2017 t0 31.8.2019, in which the learned Magistrate has directed the Police to register a crime and conducted investigation against the allegations in the complaint. 2. The prosecution case in short is that the lady de facto complainant, aged 43 years is a divorcee having a daughter and that the said daughter is married and having two minor children and that the lady de facto complainant is a qualified Nurse, who had earlier worked in Indore Madhya Pradesh and that she became acquainted with the petitioner/accused, aged 28 years through B.A.No.8489/2019 3 facebook friendship which blossomed into intense love. It appears that the said affair did not confine itself within the narrow province of love but it had also transposed in to the area of lust and that the petitioner had assured her that he would marry her and on that basis, they had sexual intercourse on various occasions. Further that the petitioner had also exploited her by taking moneys and gold ornaments of her. Thus he has committed the above said offences. 3. The learned counsel for the petitioner would point out that the above said allegations raised against the petitioner are false and baseless and that this Court may order to release him on anticipatory bail. 4. Further it is pointed out that even it is assumed that the incident narrated in the F.IS. are broadly true, then the incident could have happened only on the basis of consensual sexual relationship between the parties and not otherwise and none of the ingredients of offence as per Section 376 of IPC are made out in this case. Further the learned counsel for the petitioner has pointed out the various rulings of the Apex Court and various High Courts including this Court, which have laid down the vital and substantial distinction between rape as per Section 376 of IPC and B.A.No.8489/2019 4 consensual sexual relationship, where a man and a woman continue to have sexual relationship for quite sometime, then it is very difficult to make out a case of rape and that the breach of promise to marry cannot be the basis to contend that the consent of the woman was obtained on the basis of misconception of facts as understood in Section 90 of the IPC etc. 5. It is further urged by the learned counsel for the petitioner that going by the social understandings and norms of any average reasonable and prudent person, any woman standing in the shoe of the complainant, who is a grandmother and a divorcee, and who is aged more than 43 years, will not expect that a young unmarried man hardly the age of 28 years, who is just old enough to be her son-in-law, would venture to sacrifice his life to marry a grandmother divorcee, who is aged more than 43 years and that even if it is assumed that the allegations in the F.I.R are correct, then any reasonable prudent person would only hold that the lady will know that the so called promise, if any said to have been made by a 28 year old unmarried man that he would marry her, who is aged more than 43 years, is only a word given in lips service and that going by her version that both of them were involved in sexual relationship for quite some time and therefore, the alleged promise B.A.No.8489/2019 5 to marry cannot be a matter of immediate relevance for their acts of sexual intercourse. In this regard, the learned counsel for the petitioner would place reliance on the judgment of the Division Bench of the Culcutta High Court in _**Jayanthi Rani Panda**_ v. _**State of Bengal and another**_ [1984 Crl.LJ 1535 ], wherein it has been held in paragraph 7 thereof as follows:- _“The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. S.90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never really intended to marry her._ ” On this basis, accordingly, the learned counsel for the petitioner would point out that this Court may order to grant anticipatory bail to the petitioner subject to appropriate conditions and that the petitioner would fully co-operate with the Investigating Officer in the interrogation process and in the conduct of the investigation in this case etc. 6. Per contra, the learned counsel for the petitioner has seriously opposed the plea for anticipatory bail and has also B.A.No.8489/2019 6 pointed out that apart from the allegations of sexual relationship, there are also serious allegations that the petitioner had taken more than Rs.27 lakhs from her and some of her gold ornaments etc., and that there is every possibility of the petitioner intimidating and influencing the witnesses more particularly the lady de facto complainant, if he is let off on bail. 7. This Court had queried to the learned Public Prosecutor that as to whether the investigating agency has ascertained about the details of the money said to have been given to the petitioner by the lady. The learned Public Prosecutor would submit that as of now it appears that the figure of Rs.27 lakhs alleged in the complaint appears to be on the higher side and more details will have to be ascertained only in the course of investigation. 8. The learned counsel for the petitioner would point out that in the context of the facts of the case, monetary transactions in this case cannot be linked up with any alleged _mens rea_ on the part of the accused of dishonest intention right from the commencement of the relationship. That where the allegations of the prosecution story of such sexual relationship between the parties entered into voluntarily, then the _mens rea_ of dishonest intention of taking the money etc., cannot be linked up in a case B.A.No.8489/2019 7 like this and it can be easily envisaged that very often money would have been given by one partner to the other in such living in relationship out of considerations in the love and lust affair that would have developed between them. That at any rate, those allegations of monetary transactions in the context of sexual relationship between the parties cannot be the basis to deny anticipatory bail etc. Further it is pointed out that the alleged initial incident which is said to have happened as early as in April 2017 whereas the complaint has been made only as late as on 26.10.2019 and the long delay in the lodging of the case has not been explained properly. It would fatally vitiate the impugned criminal proceedings as it affects the very believability and credibility of the prosecution story. 9. After hearing both sides and after careful evaluation of the facts and circumstances of the case and more particularly testing the facts of this case, in the light of the judicial precedents, which have laid down the substantial distinction between rape and consensual sexual relationship and the matters in relation to the delay in lodging of the case, this Court is inclined to take the view that the custodial interrogation of the petitioner may not be really necessary or warranted for effectuating smooth and fair conduct of B.A.No.8489/2019 8 the investigation in this crime. However, taking note of the serious apprehension raised by the prosecution, it is ordered as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station, where the lady de facto complainant is residing until the conclusion of the trial process, subject to certain exception which will be dealt with herein after. It is pointed out that the petitioner is residing in Bison Valley near the Idukki District whereas the lady de facto complainant is residing Kumaly and that they are residing within the limits of two different Police Station. However, the learned Public Prosecutor would point out that the petitioner has not so far appeared before the Investigating Officer for the interrogation process. Accordingly, the following directions and orders are passed: - _1) The petitioner will immediately personally appear before the Investigating Officer in relation to the above said crime for interrogation purposes without any further delay, at any rate, by 10 a.m. on any day on or before 6.01.2020 or within such time limit that may be extended by the Investigating Officer as he deems fit and proper._ _2) The petitioner will fully co-operate with the Investigating Officer in the above interrogation process._ B.A.No.8489/2019 9 _3) The petitioner should also co-operate with the Investigating Officer in the conduct of any potency test, if it is so insisted by the Investigating Officer._ _4) After the interrogation process is over, if the Investigating Officer arrests the petitioner in relation to the above said crime, then he shall be released on bail on his executing a bond for Rs.40,000/- (Rupees forty thousand only) and on his furnishing two solvent sureties each to the satisfaction of the Investigating Officer concerned. However, the grant of bail will be subject to the following conditions:_ - _(i) The petitioner shall not involve in any criminal offences of similar nature._ - _(ii) The petitioner shall fully co-operate with the investigation._ - _(iii) The petitioner shall report before the Investigating Officer as and when required in that connection._ - _(iv) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _(v) The petitioner shall not visit or go anywhere near to the residence of the lady de facto complainant._ - _(vi) The petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the lady de facto complainant is residing until the conclusion of the trial process in this crime, except for the limited purpose of reporting before the Investigating Officer in this case or in any other crimes and for attending to the courts in connection with this case or any other cases or for contacting his advocate/lawyer, etc._ - _(vii) However, if there is any emergent personal need to visit the said area, then the petitioner may do, only_ B.A.No.8489/2019 10 _after getting permission of the investigating officer._ If there is any violation of the abovesaid conditions by the petitioner, then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application stands disposed of. Sd/- **ALEXANDER THOMAS, JUDGE.** acd