Riyas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 5TH DAY OF SEPTEMBER 2013/14TH BHADRA, 1935** ## **Bail Appl..No. 5728 of 2013 ()** **------------------------------CRIME NO. 637/2013 OF VALLIKUNNAM POLICE STATION , ALAPPUZHA DISTRICT** **----------------------------------------** ## **PETITIONER/ACCUSED:** **---------------------------------------** **RIYAS, AGED 28 YEARS, S/O. ABDUL RAHIM, RIYAS MANZIL, MUZHANGODI, TODIYOOR P.O., KAROORKADAVU, KARUNAGAPALLY, KOLLAM.** **BY ADVS.SRI.BECHU KURIAN THOMAS SRI.S.SREEDEV** **RESPONDENT :** **--------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. REPRESENTED BY SUB INSPECTOR OF POLICE, VALLIKUNNAM POLICE STATION, ALAPPUZHA.** **BY PUBLIC PROSECUTOR SRI. C.RASHEED** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30-08-2013, THE COURT ON 05-09-2013 PASSED THE FOLLOWING:** **sts** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - B.A. No. 5728 of 2013 - - - - - - - - - - - - - - - - Dated this the 5[th] day of September, 2013. ## ORDER This is an application filed under Section 438 of Cr.P.C. seeking anticipatory bail. 2. The allegation against the petitioner is that he had sexually assaulted the defacto complainant between March, 2012 and 27.2.2013 under the promise of marriage and thereafter betrayed her. It is also alleged that he had misappropriated her gold ornaments under the pretext of covering the marriage expenses and thereby cheated the complainant. The further allegation is that he had also manhandled her. The petitioner stands accused of having committed offences punishable under Sections 376, 323, 506 (i) and 420 of Indian Penal Code and Section 66(E) of the Information Technology Act. 3. The petitioner says that he is totally innocent and has been falsely implicated. The petitioner claims to be a B.A.5728/2013. 2 close relative of the defacto complainant. He attributes loose character to the defacto complainant. The defacto complainant wanted the petitioner to marry her. But he was unable to do so due to the relationship between them. It so happened that the defacto complainant was divorced by her husband and thereafter the defacto complainant began to insist that the petitioner should marry her. With the above object and purpose, she began to knit stories between him and the defacto complainant and attributed several unfounded allegations against him. The petitioner claims to be totally innocent and says that he has been implicated with ulterior motive. He therefore seeks pre-arrest bail. 4. Learned Public Prosecutor very vehemently opposed the petition. He pointed out that the claim of the petitioner that he is totally innocent cannot be accepted. A reading of the complaint given by the defacto complainant is sufficient to show that the petitioner is deeply involved. He B.A.5728/2013. 3 had exploited the position of the defacto complainant and had sexually abused her and also had deprived her of her gold ornaments. Whatever that be, according to the learned Public Prosecutor, the investigation is at an infant stage and the offence being of grave nature, granting of anticipatory bail would have an adverse impact on the investigation. 5. After having heard learned counsel for the petitioner and the learned Public Prosecutor and having perused the records, there seems to be considerable force in the submission made by the learned Public Prosecutor. 6. Learned counsel appearing for the petitioner pointed out that apart from the delay in lodging the FIS, a reading of the complaint given by the defacto complainant would clearly show that the allegations are totally false. At any rate, according to the learned counsel for the petitioner, even assuming that there was physical relationship between the petitioner and the defacto complainant, that was with the B.A.5728/2013. 4 consent of the defacto complainant and the said act can by no stretch of imagination amount to rape. She was well aware, according to the learned counsel, that due to the close relationship between the parties, the petitioner could never marry the defacto complainant. The allegation made in the complaint, according to the learned counsel, that the petitioner was instrumental in leading her to physical contact is contrary to facts. According to the learned counsel, even assuming there were physical contacts between the victim and the defacto complainant, they were with the consent of the victim. Learned counsel relied on the decision reported in Uday v. State of Karnataka ((2003) 4 SCC 46). 7. Though the argument of the learned counsel for the petitioner looks attractive at the first blush, on a close scrutiny, it can be found to be without any basis. This court must remind itself that the court is dealing with only a bail application and the scope and ambit of the scrutiny of the B.A.5728/2013. 5 records is considerably limited. All that the court needs to look into is whether there is a prima facie case against the petitioner. On a perusal of the CD and on going through the complaint, it is difficult to come to the conclusion that the petitioner is innocent. 8. Reliance was placed on the following passage from the decision reported in Uday v. State of Karnataka ((2003) 4 SCC 46). “10. Learned counsel for the appellant submitted that in the context of Section 375 of the Indian Penal Code, which is a special provision, the general provision namely Section 90 of the Indian Penal Code was not of much assistance to the prosecution. According to him Section 375 Thirdly, Fourthly and Fifthly exhaustively enumerate the circumstances in which the consent given by the prosecutrix is vitiated and does not amount to consent in law. According to him one has to look to Section 375 alone for finding out whether the offence of rape had been committed. Secondly, he B.A.5728/2013. 6 submitted that even under Section 90 of the Indian Penal Code the consent is vitiated only if it is given under a misconception of fact. A belief that the promise of marriage was meant to be fulfilled is not a misconception of fact. The question of misconception of fact will arise only if the act consented to, is believed by the person consenting to be something else, and on that pretext sexual intercourse is committed. In such cases it cannot be said that she consented to sexual intercourse. He sought to illustrate this point by reference to English cases where a medical man had sexual intercourse with a girl who suffered from a bona fide belief that she was being medically treated, or where under pretence of performing surgery a surgeon had carnal intercourse with her. In Stroud's Judicial Dictionary (Fifth Edition) page 510 "consent" has been given the following meaning :- "Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side." It refers to the case of Holman v. The Queen : (1970) WAR 2 wherein it was held that "there does B.A.5728/2013. 7 not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is consent' ". Similar was the observation in R. v. Olugboja : (1981) 3 WLR 585 wherein it was observed that "consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence, and the issue of consent should not be left to the jury without some further direction". Stephen, J. in Queen v. Clarence (1888) 22 QBD 23 observed - "It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true." Wills, J. observed - "the consent obtained by fraud is not consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent." B.A.5728/2013. 8 9. The question as to whether there was consent or not is a matter to be gone into after trial is conducted and on the basis of the evidence adduced by the prosecution. It is too early to come to the conclusion that the physical relationship between the petitioner and the defacto complainant was with the consent of the defacto complainant and the defacto complainant in her complaint narrated the incident which leads to the physical relationship between the two. On going through the complaint, it appears that the victim was forced to have sexual relationship and thereafter the relationship was maintained under the promise of marriage. The defacto complainant has also complained about the petitioner misappropriating her gold ornament and also beating her. It is quite inappropriate to go into the veracity of the allegations at this stage. On the very face of it, it could not be said that the allegations are false and the veracity of the allegations needs to be determined at a later stage. B.A.5728/2013. 9 10. On a consideration of the materials before this court, the claim of the petitioner that he is innocent cannot be countenanced at this stage. The nature of the allegations against the petitioner, the manner in which the offence was committed and the gravity of the offence and also the fact that investigation is at an infant stage precludes this court from exercising the extraordinary jurisdiction in favour of the petitioner. This application is accordingly dismissed. P. BHAVADASAN, JUDGE sb.