Shiju V. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 27[TH] DAY OF SEPTEMBER 2021 / 5TH ASWINA, 1943 BAIL APPL. NO. 6697 OF 2021** **CRIME NO.580/2021 OF BAKEL POLICE STATION, KASARAGODE DISTRICT** ## **PETITIONER/ACCUSED:** **SHIJU V. AGED 33 YEARS S/O.PRABHAKARAN, RESIDING AT KOOLIMAVUNGAL HOUSE, UDAYA NAGAR, HARIPURAM P.O., KASARAGODE DISTRICT - 671 531. BY ADVS. T.MADHU C.R.SARADAMANI SHAHID AZEEZ** ## **RESPONDENTS/STATE:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF**| ||**KERALA, ERNAKULAM - 682 031.**| |**2**|**THE STATION HOUSE OFFICER**| ||**BAKEL POLICE STATION, KASARAGOD, KASARAGOD DISTRICT -**| ||**671 316.**| |**3**|**XX**| ||**XX**| ## **OTHER PRESENT:** ## **PP.C.N PRABAHKARAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.09.2021, THE COURT ON 27.09.2021 DELIVERED THE FOLLOWING:** B.A.No.6697/2021 2 ## **O R D E R** The petitioner is the sole accused in crime No.580/2021 of Bakel Police Satation, Kasaragod district, which is registered under Sections 366 and 376(2)(n) of IPC. 2. It is alleged by the prosecution that on 14.05.2021 the petitioner and the defacto complainant got acquainted with each other and thereafter from 19.05.2021 onwards on several days the petitioner seduced the defacto complainant to marry her and kidnapped her from Garden Valappu in Balla Village where the defacto complainant is residing, in his autorickshaw bearing Reg.No.KL 60 E 8343 and took her to his father's house at Kaniyamkundu in Periya Village and thereafter he committed sexual intercourse with the defacto complainant promising to marry her. It is also alleged that after the first sexual contact accused tied a 'thali' on her neck in front of the photo of his father. On the first day, she was subjected to sexual intercourse on five occasions as per her version in the FIS and she was taken to her home at 4 p.m. Further it is alleged that thereafter two days on every week accused used to take her to his parental house and subjected her to sexual intercourse. Thereafter the accused B.A.No.6697/2021 3 informed the petitioner that his family members are not interested in his marriage with her. Subsequent to that he never picked up her phone and expressed his inability to marry her and told her that they can have mere friendship, thereby accused alleged to have committed the offence aforementioned. 3. According to the learned counsel for the petitioner, defacto complainant is a married woman with two children and at any rate the offence under Section 376 IPC will not be attracted since the promise to marry will not be attracted since her marriage is subsisting. It is also his contention that she was actually voluntarily going with the petitioner and hence it was a consensual act and even if the entire prosecution case is accepted, none of the ingredients of the offence alleged against the accused would be attracted to the fact situation of this case. Hence apprehending arrest, he approached this court. 4. The learned counsel relies on the decision reported in K.P.Thimmappa Gowda v. State of Karnataka [AIR 2011 SC 2564] to contend that voluntary sexual relationship by a man with a woman above 16 years with a promise to marry her will not constitute an offence under Section 376 IPC even if the man subsequently B.A.No.6697/2021 4 withdraw from his promise. The learned counsel relies on Baldhari Ohdar v. State Of Bihar [2001 Crl.L.J. 883], Sunil Vishnu Salve And Anr. v. State Of Maharashtra [2006 Crl.L.J.587] and Deepak Gulati vs State Of Haryana [(2013) 7 SCC 675] to support the contention that when prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so, such cases must be treated differently. Further, Uday v. State Of Karnataka [(2003) 4 SCC 46] was placed reliance to support the contention that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a future uncertain date, cannot be said to be given under a misconception of fact. The learned counsel also relies on Arnesh Kumar v. State of Bihar [2014 (3) KLT 143 (SC)] to contend that before arresting the accused police should satisfy the requirements of Section 41 Cr.P.C. and hence the petitioner is not liable to be arrested, the learned counsel contends. 5. The learned Public Prosecutor strongly objects in B.A.No.6697/2021 5 considering this petition for pre-arrest bail filed by the petitioner in view of the serious nature of the offence alleged to have been committed by him. Report of the Inspector of Police, Bakel Police Station and copy of FIR and FIS in crime No.580/2021 was also produced at the instance of the respondent. 6. The learned Prosecutor on the basis of the Report filed by the Inspector of Police, contended that if bail is granted to the accused, there is possibility of accused repeating the acts, influencing and threatening the defacto complainant and the witnesses. It is also contended that grating bail to the accused persons in such grievous crimes would be a temptation to involve in such grievous crimes by other persons. It is further contended that the potency test has to be conducted and also the autorickshaw bearing Reg.No.KL 60 E 8343, which was used for kidnapping the defacto complainant has to be seized and further investigation has to be conducted. Hence the custodial interrogation of the petitioner is absolutely necessary. 7. The main argument of the learned counsel for the petitioner is that, even if the entire prosecution case is accepted as true, no offence as alleged would be attracted against the B.A.No.6697/2021 6 petitioner. According to him, the defacto complainant is a married woman and her marriage is subsisting and hence the question of promise to marry and committing forceful sexual contact does not arise. It is also his contention that she was voluntarily going with him in the autorickshaw and hence the offence under Section 362 or 366 IPC would not be attracted. 8. Section 362 IPC would provide that whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. Here, the prosecution allegation itself is that the accused took her to Periya, his father's house. But when they reached there, nobody was there in the house and his father was also no more. It is also stated by the victim in the FIS that after the sexual intercourse he tied a 'thali' and told that he would marry her and she need not get worried. So the deceitful means by which he induced the defacto complainant to go to Periya, to his father's house, stating that they can go to his father's house itself would prima facie shows the way in which he induced the defacto complainant to go from her place of residence. So also even though she told him about her anxiety in having physical contact, he hold her hand and soothed her stating not to B.A.No.6697/2021 7 worry and he would marry her and thereafter had physical contact with her and tied thali in front of the photo of his father. It is also alleged by the prosecution that thereafter twice in a week accused used to take the defacto complainant to his father's house and subjected her to sexual intercourse. Subsequently he withdrew from the offer stating that his family members are not interested in their marriage. Though the learned counsel for the petitioner would contend that her marriage was subsisting and hence the promise to marry will not be attracted in this case, on going through the FIS, the specific statement of the victim is that her husband is in Tamil Nadu for the last 11 years. So there is nothing to indicate that their marriage was subsisting. Her statement is that her husband left her before 11 years and he is in Tamil Nadu. It is also stated by her that she is doing household works and with that meagre income looking after her children. To such a hapless woman, the above acts alleged to have been committed by the petitioner. Though the learned counsel placed reliance on [AIR 2011 SC 2564], [2001 Crl.L.J. 883] and [2006 Crl.L.J.587], all those decisions arose out of appeal against conviction. [(2013) 7 SCC 675] and [(2003) 4 SCC 46] also arose out of appeal by special leave against judgment and order of upholding the conviction of B.A.No.6697/2021 8 the appellant under Section 376 IPC. But, in the present case, the investigation is in the primary stage. The Report filed by the Inspector of Police would reveal that potency test of the accused has to be conducted and the autorickshaw which was used for abducting the defacto complainant have to be seized and the dresses which was worn by the accused at the time of occurrence have to be seized. So the fact situation of the present case is entirely different from the above cited decisions by the learned counsel. There are prima facie materials to conclude that the petitioner has made the promise with the sole intention to seduce the defacto complainant to indulge in sexual intercourse. 9. So in view of the serious nature of the offence alleged to have been committed by the petitioner, if the petitioner is released on pre-arrest bail, the entire investigation would be in a standstill and it would result in throwing the prosecution case at the threshold. So also releasing such accused persons alleged to be involving in such serious offences on pre-arrest bail would also give a wrong message to the society and it would definitely have a result in taking such offences lightly and repeating such acts, which would in turn result in increase of harassment and exploitation of hapless woman like the defacto complainant. So at B.A.No.6697/2021 9 any rate, I do not think that this is a fit case to release the petitioner on pre-arrest bail. 10. Though reliance was placed on Arnesh Kumar's case by the learned counsel, it has no application in the present case. Offence alleged against the petitioner is one liable to be punished with imprisonment which may extend to imprisonment for life and with fine. 11. Based on the above, I am of the view that the petitioner has not made out a case for pre-arrest bail. In the result, bail application dismissed. **Sd/-** **M.R.ANITHA** Shg/ **JUDGE**