Sarath Chandra and Vijayalekshmi v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 27TH DAY OF SEPTEMBER 2019 / 5TH ASWINA, 1941 Bail Appl..No.6619 OF 2019** ## **PETITIONERS/ACCUSED NOS.1 AND 2:** **1 SARATH CHANDRA, AGED 27 YEARS S/O. MOHANANCHANDRAN PILLAI, 'MANORAMA HOUSE', KALAVOOR P.O., ALAPPUZHA DISTRICT. 2 VIJAYALEKSHMI, AGED 60 YEARS W/O. MOHANANCHANDRAN PILLAI, 'MANORAMA HOUSE', KALAVOOR P.O., ALAPPUZHA DISTRICT.** **BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU** ## **RESPONDENTS:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.6619 OF 2019 ..2.. ## **ALEXANDER THOMAS, J.** ------------------------------------B.A. No. 6619 of 2019 ------------------------------------Dated this the 27[th] day of September, 2019 ## O R D E R The petitioners have been arrayed as accused Nos. 1 and 2 in the instant Crime No. 896 of 2019 of the Kodungalloor Police Station, Thrissur District, which has been registered for the offences punishable under Sections 376 and 420 read with Section 34 of the Indian Penal Code on the basis of the FI statement given by the lady victim on 28.08.2019 at about 11.20 a.m. in respect of the alleged incidents which happened for the period from 27.07.2019 onwards. Now the above said crime has been transferred and re-registered as Crime No. 1030 of 2019 of the Kumarakom Police Station, Kottayam District. 2. The allegations made in the instant FI Statement is that the lady victim aged 42 years is a divorcee and is having 13 year old daughter and that the first petitioner aged 27 years is an unmarried man and that they had developed Facebook friendship Bail Appl..No.6619 OF 2019 **==> picture [19 x 9] intentionally omitted <==** and it turned out to be an intense love affair, and that the first petitioner assured her that he would marry her and he had introduced his parents including the second petitioner (second accused) who is his mother to her and that on 27.07.2019, he had taken her to a hotel in Kumarakom, and he had sexual intercourse with her and that the first petitioner (first accused) and the second petitioner (second accused) had received huge monetary amounts from her coming to around Rs.10 lakhs on various occasions from January, 2018 onwards and that they had assured to repay it back, and has not paid the same, and that later, the first petitioner lost interest in the marriage proposal and he abandoned her and she felt cheated and that she has given the instant complaint by way of FIS to the Police which led to the registration of crime. 3. The learned counsel for the petitioners would point out that the above said allegations are false and fabricated, and that the truth of the matter is other way round and that it is unbelievable that a highly educated unmarried man aged 27 years will be seriously interested to marry a divorcee lady aged 42 years Bail Appl..No.6619 OF 2019 ..4.. and having 13 years old daughter, and that as a matter of fact, the lady has suppressed crucial facts in the case. Further that the first accused and the lady became friends through Facebook since January, 2018, and that it was the lady who had invited the first petitioner to her propitiatory concern by name CPEC (Competency Preparation and Expertise Curriculum), which is situated in a building near Lulu Mall, Edappally, Kochi, and that the first petitioner is an MBA graduate and that pursuant to the invitation, he and his brother had joined the said business of the lady and that the understanding was that they will be inducted in the firm as partners if their performance is outstanding and will be given 1/3[rd] share in the profits and from the remaining 2/3[rd] share, the defacto complainant will meet the entire expenses, including the salary to the staff. The mode of business was to conduct study class so as to equip the students to have proficiency in language, including English with British accent. The commission to the first petitioner and his brother was agreed to be sent by the lady to the bank account of the second petitioner herein (mother of the first Bail Appl..No.6619 OF 2019 ..5.. petitioner), since she alone was having SBI bank account, wherein the lady was having an account. The various amounts by way of commission due to the first petitioner and his brother were remitted by the lady to the bank account of the second petitioner. Further that even if the allegations are true, then any intelligent reading of the said FIS would make it clear like the day light that the sexual relationship would have happened only with the consent and not otherwise and therefore the vital ingredients for the offence of rape are not made out. _Prima facie_ this Court is of the view that if the parties were conducting the same business through the above said concern/firm and had some business transactions also, then the suppression of those relevant facts in the FIS has to be viewed very seriously, and the Police is duty bound to ascertain the correctness of those aspects. 4. The learned counsel for the petitioners has also relied on various rulings of the Apex Court and various High Courts including this Court regarding the vital and substantial distinction between rape and consensual sexual relationship Bail Appl..No.6619 OF 2019 ..6.. between the parties wherein it has been held that where a man and a woman have sexual relationship for quite some time, then it is very difficult to make out a case of rape and that in such cases, it cannot be contended that the consent of the woman was obtained on the basis of misconception of fact, and therefore the ingredients of the offence of rape will not be brought out. The petitioners' counsel has also contended that ordinarily a highly educated young unmarried man aged 27 years may not be interested to marry a divorcee lady aged 42 years, and that too who is having a 13 years old daughter. It appears that the parties belong to different religious communities. Further it is pointed out that the allegations against the second petitioner (second accused) are absolutely false and she has been dragged into only as a pressure tactics to intimidate the petitioners. The learned counsel for the petitioners would point out that the custodial interrogation of the petitioners is not necessary for the smooth and effective conduct of the investigation in this crime. Bail Appl..No.6619 OF 2019 ..7.. 5. The learned Prosecutor has seriously opposed the plea for anticipatory bail and pointed out that the various factual aspects canvassed by the petitioners regarding the business transaction between the parties can only be ascertained only after investigation by the Police. 6. After hearing both sides and after testing the facts of the case in the light of the abovesaid judicial precedents regarding the distinction between rape and consensual sexual relationship, this Court is of the considered view that the petitioners have made out a strong probable case that the custodial interrogation may not be necessary for the smooth and effective conduct of the investigation in this crime. 7. Accordingly, it is ordered that in the event of the petitioners being arrested in relation to the abovesaid crime, then they shall be released on bail on their separately executing bond for Rs.40,000/- each and on separately furnishing two solvent sureties each for the like sum, both to the satisfaction of the Investigating Officer concerned. Bail Appl..No.6619 OF 2019 ..8.. ## 8. Further it is also ordered that the grant of bail will be subject to following conditions:- - _i. The petitioners shall not involve in any criminal offence of similar nature._ - _ii. The petitioners shall fully co-operate with the investigation, more particularly with the interrogation process, conduct of potency test, etc._ - _iii. The petitioners shall report before the investigating officer as and when required in that connection._ - _iv. The petitioners shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _v. The petitioner shall not go or visit anywhere near the residence or workplace of the lady defacto complainant until the conclusion of trial._ If there is any violation of the abovesaid conditions by the petitioners, then the jurisdictional court concerned will stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail ## Application will stand disposed of. Sd/ALEXANDER THOMAS, JUDGE ds 30.09.2019