Rajeev K.R. v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 14TH DAY OF AUGUST 2019 / 23RD SRAVANA, 1941** **BAIL APPL.NO.5801 OF 2019** **CRIME NO.1278/2018 OF MULANTHURUTHY POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **RAJEEV K.R., AGED 27 YEARS, S/O.P.K.RAJAN, KALARICKAL HOUSE, NEAR PUTHANPALLY, VAZHITHALA, PURAPPUZHA P.O., THODPUZHA, IDUKKI.** **BY ADVS.SRI.C.A.CHACKO, SMT.C.M.CHARISMA** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -------------------------------------------B.A. No. 5801 of 2019 -------------------------------------------Dated this the 14[th] day of August, 2019 ## O R D E R The petitioner has been arrayed as the sole accused in the instant Crime No.1278/2018 of Mulanthuruthy Police Station, which has been registered for offences punishable under Secs.450, 376(2)(n) & 417 of the IPC and Sec.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, on the basis of FIS given by lady defacto complainant on 19.12.2018 at about 3.25 pm in respect of the alleged incidents which have happened for the period from 5.5.2017 to 7.11.2018. It appears that, police after due investigation has ascertained that the lady defacto complainant does not belongs to SC/ST community and thereupon the police has now deleted the offence as per Sec.3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and only the offences as to the IPC are subsisting. 2. The prosecution case in short is that, the petitioner B.A. No. 5801 of 2019 **==> picture [19 x 9] intentionally omitted <==** aged 27 years had pretended love and assured the lady defacto complainant aged 32 years (who is an unmarried lady) that he would marry her, and on the basis of that assurance, they had sexual intercourse on two occasions on 5.5.2017 and 1.11.2018, and later the petitioner and his mother informed the lady that the proposal of marriage is dropped,etc and that she felt cheated and thereby she has given the instant FIS to the police which has led to the registration of the instant crime on 19.12.2018. The petitioner was arrested on 29.7.2019, and has been under judicial custody since then. 3. Sri.C.A.Chacko, learned counsel appearing for the petitioner would submit that the abovesaid allegations are all false and baseless and that even otherwise, a close and intelligent reading of the contents of FIS given by lady defacto complainant would clearly show that the allegations of sexual incidents narrated therein are true, then it would happened only on the basis of consent between the parties. 4. Both sides have elaborately taken this Court's attention to the contents of FIS which has been produced along with FIR B.A. No. 5801 of 2019 ..4.. filed by Prosecutor. In the said FIS it is stated that the lady defacto complainant has a qualification in General Nursing and after 2015 she stopped working as nurse, and she was devoting her attention for passing the IELTS test which is a foreign qualification in Spoken English, and that in her bus journeys she became acquainted with the petitioner accused who was working as a conductor in the bus in which she traveled. They became close and an intense love affair started and that he used to frequently borrow money from her and had never returned it, and he had gone to her house on two occasions (5.5.2017 & 1.11.2018) and had sexual intercourse with her. Later the petitioner and his mother had informed her that the marriage proposal is dropped. Further that the petitioner had reached an understanding with the lady that the marriage will be solemnized in accordance with the provisions contained in the Special Marriage Act and even statutory notice was also submitted by both of them before the Registrar's office concerned on 26.10.2017 and after the expiry of 30 days time period, the petitioner had abandoned the proposal as stated above. 5. In view of the abovesaid contents in the FIS, counsel for B.A. No. 5801 of 2019 **==> picture [18 x 9] intentionally omitted <==** the petitioner would point out that the alleged incidents if true could have happened only on the basis of consent between the parties. Counsel for the petitioner has also brought to the notice of this Court, various rulings of the Apex Court and various High Courts including this Court, as to the fine and substantial distinction between forcible sexual intercourse or rape as per Sec.376 of the IPC and consensual sexual relationship between the parties, and wherein it has been held that where the lady and man have sexual relationship for quite some time, then it cannot be said that, there is an element of rape involved as the relationship is mainly on the basis of consent between the parties, and that mere promise to marry and breach of such promise cannot be the basis to contend that the consent was obtained on the basis of misconception of fact as envisaged under Sec.90 of the IPC. 6. Counsel for the petitioner would also raise an alternate plea that since the petitioner has already undergone detention since 29.7.2019, his continued detention is not really be warranted and that this Court may release him on regular bail subject to stringent conditions. B.A. No. 5801 of 2019 ..6.. 7. Learned Prosecutor has seriously opposed the plea for regular bail and has submitted that there is strong likelihood of the petitioner intimidating and influencing witnesses including the lady defacto complainant and her family members, if he is let out on bail. 8. After hearing both sides, and after carefully testing the facts of the case in the light of judicial precedents which has dealt with the substantial distinction between rape as per Sec.376 of the IPC and consensual sexual relationship between the parties, this Court is inclined to take the view that the petitioner as brought out a strong probable case that his continued detention is not warranted and necessary. However the apprehension raised by the prosecution regarding the likelihood of the petitioner intimidating and influencing the witnesses including the lady defacto complainant cannot be safely ruled out by this Court and appropriate safeguards will be incorporated as conditions in the grant of bail. It is proposed to order that the petitioner shall not reside anywhere within the territorial limits of the Police Station where the lady defacto complainant is working B.A. No. 5801 of 2019 ..7.. or residing until the conclusion of investigation process, subject to certain exceptions which will be dealt with hereinafter. 9. Accordingly it is ordered that the petitioner shall be released on bail on his executing bond for Rs.40,000/- and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the competent court below concerned. However the grant of bail will be subject to the following conditions:- - i. _The petitioner shall appear before the Investigating Officer on every 2[nd] and 4[th] Saturdays, at any time between 9 am and 1 pm, for a further period of 4 months._ - _ii. He shall not intimidate or attempt to influence the defacto complainant, witnesses; nor shall he tamper with the evidence._ _iii. He shall not commit any offence while on bail._ - _iv. The petitioner shall not visit or go anywhere near to the workplace or residence of the lady defacto complainant._ - v. _The petitioner shall not enter into or reside within the territorial limits of the Police Station where the lady defacto complainant is working or residing until the conclusion of investigation process, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in_ B.A. No. 5801 of 2019 ..8.. _relation to this case or any other cases or for contacting his lawyers/advocates concerned._ - _vi. However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned shall stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law. With these observations and directions, the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG