Shibu Raj v. The State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **Bail Appl..No.7633 OF 2019** ## **AGAINST THE ORDER/JUDGMENT IN CRMC 2103/2019 OF DISTRICT COURT & SESSIONS COURT,TRIVANDRUM** **CRIME NO.1085/2019 OF Kattakada Police Station , Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **SHIBU RAJ, AGED 48 YEARS KOOVALATHUVILA VEEDU, ANTHIYOORKONAM, MALAYINKEEZHU VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH** ## **RESPONDENT/STATE:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY ADVS. SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. No. 7633 of 2019 2 ## ALEXANDER THOMAS, J. ------------------------------------ ## B.A. No. 7633 of 2019 -----------------------------------Dated this the 7[th] day of November, 2019 ## **O R D E R** The petitioner herein has been arrayed the sole accused in the instant impugned Anx.1 Crime No.1085 of 2019 of Kattakkada Police Station, Thiruananthapuram, which has been registered for the offences punishable under Secs. 342, 376(1), 354-A and 506 of IPC. The said crime has been registered on the basis of the F.I Statement given by the lady defacto complainant on 27-08-2019 at about 2.40 p.m in respect of the alleged incidents, which happened on the previous day on 31-05-2019 at about 11.30 a.m in the morning. 2. The brief of the prosecution case is that the lady defacto complainant aged, 24 years is a married woman and having a child and that she owed certain liabilities to a bank and the petitioner aged, 40 years had assured her he would help her to clear the loan liabilities and asked her to come near the Bank on 31-05-2019 at about 9.30 a.m and she had accordingly reached there and later she had met the petitioner at the place in question where he was seated inside his Innova car and she had also gone and she was asked to get B.A. No. 7633 of 2019 3 inside the car to discuss the details and she was seated in the front seat for some time and later as she felt that the air conditioner was too cold she went to the back seat and the petitioner also went there and there he had showed a knife and threatened her and forced her to do oral sex with him etc,. The incident is said to happened as early as on 31-05-2019 at about 11.30 a.m in the morning, whereas the FIS and the crime has been lodged only on 27-8-2019 at about 2.40 p.m. 3. The learned counsel for the petitioner would point out that the abovesaid allegations are absolutely false and fabricated and the truth of the matter is other way a round and that though the lady defacto complainant is a married woman, having a child, she is started having love affair with the petitioner, who is a married man and both of them started living together as man and wife in the same house with the consent of her husband, and her mother, and that Anx.IV, series of photographs would show the intimate relationship between the petitioner and the lady defacto complainant as well as the closeness of the petitioner, the lady as well as her husband and that the lady was taking full advantage of the petitioner’s financial capacity and had almost taken more than rupees 1.5 crores from him and gold ornaments worth Rs.4 Lakhs and later when the petitioner B.A. No. 7633 of 2019 4 demanded re-payment, she had engaged some of her henchmen to assault the petitioner on 31-07-2019 at about 4.15 p.m in the location in question, for which the petitioner had immediately taken steps to give complaint to the Police, on the basis of which Anx.II crime No.1709/2019 of Karamana Police Station, has been registered for the offences under Secs. 341, 323, 294(b), 506 and 34 of IPC. The said Anx.II crime has been registered on 31-07-2019 at about 9.40 p.m, in respect of the incidents narrated therein which had happened on the same day (31-07-2019) at about 4.15 p.m. That though the petitioner has raised complaint against the lady also in Anx.II FIS, the Police has arrayed as accused only the actual assailants that since the lady was fearing the Police after intense investigation, could trace the source of the crime to her, she has made instant false allegations by giving Anx.I FIS as late as on 27-08-2019 (much after the registration of Anx.II crime dated 31-07-2019) in respect of the alleged incident said to have happened on 31-05-2019. Further that the story projected by the lady in Anx.I FIS about the incidents which are said to happened on 31-05-2019 and that too, at 11.30 a.m in the morning is absolute unbelievable and lacks credibility and it is rather impossible for anyone to have committed an offence of this nature B.A. No. 7633 of 2019 5 when the car is parked in a public road and that too, at 11.30 a.m in the morning and the long and inordinate delay in the lodging of the FIS in Anx.I and the overall allegations therein could disclose the falsity of the allegations and will also raise serious questions about the very credibility and believability of the prosecution case. Accordingly it is urged by the learned counsel for the petitioner that this Court may grant anticipatory bail to the petitioner, etc,. 4. The learned Prosecutor has opposed the plea for anticipatory bail and has submitted that there is a strong possibility of the petitioner intimidating and threatening the witnesses, more particularly the lady defacto complainant, if he is let out on bail 5. After hearing both sides and after careful evaluation of the facts and circumstance of the case, more particularly, taking into account the long and unexplained delay of more than three months in the lodging of the instant FIS and the crime and also about the nature of the overall allegations raised therein and also taking into account some of the factual aspects highlighted herein by the petitioner more particularly Anx.II crime, etc., this Court is inclined to take the view that the petitioner has made out a strong probable case that his custodial interrogation may not really B.A. No. 7633 of 2019 6 be necessary or warranted for effectuating smooth and effective conduct of the investigation of this crime. The abovesaid view has been tendered by this Court only for the limited purpose of considering the anticipatory bail plea and all other proceedings in relation to the instant crime will have to be decided unfettered and uninfluenced in any manner by the above said observations made by this Court, and such other proceedings will have to be decided independently. However taking into account the above said apprehension raised by the Prosecutor, it is proposed to order as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station, where the lady defacto complainant is residing until the conclusion of the trial process in this case, subject to certain exceptions, which will be dealt with hereinafter. However the petitioner will have to co-operate with the Investigating Officer in the interrogation process. Accordingly, the following directions and orders are passed. _i. The petitioner will immediately personally appear before the Investigating Officer in relation to the instant Crime No.1085/2019 of Kattakada Police Station for interrogation purposes without any further delay at any rate at 9 am on any day on or before 26.11.2019._ B.A. No. 7633 of 2019 7 _ii. The petitioner will fully co-operate with the Investigating Officer in the conduct of the above interrogation process._ - _iii. After the interrogation process is over, in case the Investigating Officer arrests the petitioner in relation to the abovesaid crime, then he shall be released on bail on executing a bond for Rs.40,000/- and on furnishing two solvent sureties for the like sum, both to the satisfaction of the Investigating Officer concerned._ 6. Further it is also ordered that the grant of bail will be ## subject to following conditions:- - _i. The petitioner shall report before the investigating officer on all 2[nd] and 4[th] Saturdays at any time between 9.00 a.m and 1.00 p.m for the next three months. Thereafter he shall report to the Investigating Officer as and when directed by the Investigating Officer._ - _ii. The petitioner shall not involve in any criminal offences of similar nature._ - _iii. The petitioner shall fully co-operate with the investigation._ - _iv. The petitioner shall report before the investigating officer as and when required in that connection._ - _v. The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _vi. The petitioner shall not go or visit anywhere near the residence of the lady defacto complainant until the conclusion of trial._ B.A. No. 7633 of 2019 8 _vii. The petitioner shall not enter into or reside anywhere within the limits of the Police Station within where the lady defacto complainant is residing until the conclusion of the trial process in this case, except for the limited purpose of reporting before the Investigating Officer in this case or in any other crimes and for attending to any courts in connection with this case or any other cases or for contacting his advocate/lawyer, etc._ - _vii. However, if there is any emergent and genuine reasons for the petitioner to go to that area, then he may do so, but only with prior permission of the Investigating Officer concerned._ 7. If there is any violation of the above said conditions by the petitioner, 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** KAS