Sayooj v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` THURSDAY, THE 16[TH] DAY OF NOVEMBER 2023 / 25TH KARTHIKA, 1945 ``` ``` BAIL APPL. NO. 10016 OF 2023 ``` ## **`CRIME NO.693/2021 OF Pattambi Police Station, Palakkad`** ## **`PETITIONER/ACCUSED :`** ``` SAYOOJ AGED 26 YEARS S/O MANIKANDAN, VADAKKEKALATHIL HOUSE, PADINJARETHIL, PATTAMBI, PALAKKAD DISTRICT, PIN - 679303 BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN ``` ## **`RESPONDENTS/STATE :`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2STATION HOUSE OFFICER PATTAMBI POLICE STATION, PALAKKAD DISTRICT (CRIME NO. 693/2021 OF PATTAMBI POLICE STATION, PALAKKAD), PIN - 679303 ``` ## **`OTHER PRESENT:`** ``` SRI G. SUDHEER (PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No.10016 of 2023 2 ## **O R D E R** This is an application for anticipatory bail. 2. The petitioner is the accused in Crime No.693 of 2021 of Pattambi Police Station, Palakkad, alleging commission of offences under Sections 376 and 506 of the Indian Penal Code. 3. The allegation against the petitioner is that the petitioner, who was working in a car showroom, got acquainted with the defacto complainant who had purchased a car from the said showroom and established friendship with her and after tying a tali on her neck, the petitioner entered into sexual relationships with her, despite her protest, on several occasions and thereby, he committed the offences alleged against him. 4. The learned counsel appearing for the petitioner would submit that reading of the First Information Statement of the defacto complainant itself suggests that according to her, she had consented for sexual relationship BA No.10016 of 2023 3 only on account of the fact that the petitioner had made her believe that he was the legally wedded husband of the defacto complainant/victim. It is submitted that the defacto complainant/victim is a married lady with four children and there could not have been a further marriage with the petitioner. It is submitted that, even if the allegations in the FIR are accepted as completely true, the relationship between the petitioner and the defacto complainant/victim can only be termed as consensual and no element of rape is involved. It is submitted that, if the co-operation of the petitioner can be ensured with the investigation, there is no reason to deny anticipatory bail to the petitioner. Reliance is placed on the judgment of this Court in _**Johnson v. State of Kerala**_ ; [2023 (6) KLT 29]. 5. The learned Public Prosecutor opposes the grant of bail. It is submitted that, in the statement recorded from the defacto complainant/victim under Section 164 of the Code of Criminal Procedure, there is a further allegation that the petitioner had misappropriated some gold ornaments and money belonging to the defacto complainant/victim. It is submitted that, going by the statement of the defacto BA No.10016 of 2023 4 complainant/victim, every occasion of physical relationship was objected to by her and after the first incident, she had even complained to the Manager of the car showroom where, the petitioner was working. It is submitted that, according to the defacto complainant/victim, she had been forced into physical relationships on later occasions on account of the threat held out by the petitioner that he had captured her images on his mobile phone and the same would be circulated. 6. Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the opinion that the petitioner can be granted anticipatory bail subject to conditions. The allegations against the petitioner are as noticed above. The reading of the First Information Statement of the defacto complainant/victim itself suggests that, according to her, she had consented to sexual relationship with the petitioner only on account of the fact that the petitioner had made her believe that he was her legally wedded husband. As rightly contended by the learned counsel for the petitioner, since the defacto complainant/victim was a married woman who was in a BA No.10016 of 2023 5 subsisting marriage, prima facie, it cannot be said that the petitioner had obtained consent for sexual relationship on the false promise of marriage or after making the defacto complainant/victim to believe that he had already married her. The Supreme Court in _**Bhadresh Bipinbhai Sheth v. State of Gujarat And Another;**_ [(2016) 1 Supreme Court Cases 152] held as follows; _“19. Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench Judgment of this Court in the case of Gurbaksh Singh Sibbia and Others v. State of Punjab((1980) 2 SCC 565). The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is_ BA No.10016 of 2023 6 _granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section46 of the Code. The essence of this provision is brought out in the following manner:_ _“26. We find a great deal of substance in Mr Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the_ BA No.10016 of 2023 7 _challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the Legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.”_ ## _xxx xxx xxx_ _21. It is pertinent to note that while interpreting the expression “may, if it thinks fit”occurring in Section 438(1) of the Code, the Court pointed out that it gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a “special case”. The Court also remarked that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use._ **==> picture [233 x 7] intentionally omitted <==** BA No.10016 of 2023 8 _23. The principles which can be culled out, for the purposes of the instant case, can be stated as under:_ _(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the Investigating Officer is established then action be taken against the investigating officer in accordance with law._ _(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court._ _(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the_ BA No.10016 of 2023 9 _court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a preconviction stage or post-conviction stage._ _(iv) There is no justification for reading into Section 438 Cr. P.C. the limitations mentioned in Section 437 Cr. P.C. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a “special case”for the exercise of the power to grant anticipatory bail._ _This virtually, reduces the salutary power conferred by Section 438 Cr. P.C. to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail._ _(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted_ BA No.10016 of 2023 10 _and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case._ _(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time._ _(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail._ _(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 Cr.P.C._ BA No.10016 of 2023 11 _should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the Legislature to a rigorous code of self-imposed limitations._ _(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case._ _(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:_ _(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;_ _(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;_ _(c) The possibility of the applicant to flee from justice;_ _(d) The possibility of the accused's likelihood to repeat similar or other offences;_ BA No.10016 of 2023 12 _(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;_ _(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;_ _(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern;_ _(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;_ _(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;_ (j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in (sic) entitled to an order of bail.” BA No.10016 of 2023 13 Therefore, I am inclined to grant anticipatory bail to the petitioner subject to conditions to ensure that he will cooperate with the investigation in every manner. In the result, this application is allowed. It is directed that the petitioner shall be released on anticipatory bail, in the event of arrest in Crime No.693 of 2021 of Pattambi Police Station, Palakkad subject to the following conditions:- (i) Petitioner shall execute bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer; (ii) Petitioner shall appear before the investigating officer in Crime No.693 of 2021 of Pattambi Police Station, Palakkad at 11.00 a.m. on 23.11.2023 and 24.11.2023 and thereafter whenever called upon to do so; (iii) Petitioner shall not attempt to contact the _de facto_ complainant/victim or interfere with the investigation or to influence or intimidate any witness in Crime No.693 of 2021 of Pattambi Police Station, Palakkad Police Station; BA No.10016 of 2023 14 (iv) Petitioner shall not involve in any other crime while on bail. (v) The petitioner shall surrender his passport before the jurisdictional Court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the jurisdictional court within seven days of release on bail. If any of the aforesaid conditions are violated, the Investigating officer in Crime No.693 of 2021 of Pattambi Police Station, Palakkad shall file an application before the jurisdictional Court for cancellation of bail. Sd/- **GOPINATH P., JUDGE** rkj