Shiyas P A v State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` FRIDAY, THE 13[TH] DAY OF OCTOBER 2023 / 21ST ASWINA, 1945 BAIL APPL. NO. 8253 OF 2023 ``` ## **`CRIME NO.925/2023 OF CHANDERA POLICE STATION, KASARGOD`** ## **`PETITIONER:`** ``` SHIYAS P A, AGED 37 YEARS, S/O KAREEM, PICHATTUKUNNEL VEEDU, THETTIKKOTT LANE, PARAPPURAM, PERUMBAVOOR, ERNAKULAM, PIN – 683 542. ``` ``` BY ADVS. JOHN SEBASTIAN RALPH V RALPH RETI JOHN(K/001520/2018) VISHNU CHANDRAN(K/001339/2018) APPU BABU(K/000634/2020) GIRIDHAR KRISHNA KUMAR(K/00744/2022) VISHNUMAYA M.B.(K/002474/2021) GEETHU T.A.(K/3389/2022) APOORVA RAMKUMAR(K/002237/2021) ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. 2STATE OF KERALA, CHANDERA POLICE STATION, KAZARAGOD DISTRICT (CRIME NO. 925/2023 OF CHANDERA POLICE STATION, KAZARAGOD DISTRICT), PIN – 671 310 3XXX XXX ``` ``` IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 5/10/2023 IN CRL.MA.2/2023. ``` ``` BY ADVS. SRI.VIPIN NARAYANAN, SR.PP ``` ``` R3 BY ADV.P.SUJITH KUMAR ADV.RESMI NANDANAN(K/000254/2005) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 13.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BAIL APPL. NO. 8253 OF 2023 2 ## ORDER This is an application for anticipatory bail. 2. The petitioner is the accused in Crime No.925 of 2023 of Chandera Police Station, Kasargod District, alleging commission of offences under Sections 376 and 420 of the Indian Penal Code. The allegation against the petitioner is that the petitioner entered into a relationship with the victim on the false promise of marriage and also obtained various sums of money from the victim, promising that the same will be returned after marriage and thereby he committed the offences alleged against him. 3. The learned counsel appearing for the petitioner would submit that the petitioner is absolutely innocent in the matter. It is submitted that the petitioner is running a fitness centre and he is also a model and an actor. It is submitted that the alleged victim is also a model by profession and she was given a job by the petitioner. It is submitted that an intimacy developed between the petitioner and the victim and they entered into a relationship. It is submitted that though the petitioner had every BAIL APPL. NO. 8253 OF 2023 3 intention of marrying the victim, it was later learnt that the victim was a divorcee with a 15 year old child. It is submitted that there cannot be any allegation of rape on the false promise of marriage as even going by the First Information Statement of the victim, her marriage with her husband is still subsisting. The learned counsel also places reliance on the judgment of this Court in Bail Application No.8772 of 2022 to contend that when two mature persons enter into a relationship knowing fully well of the consequences of their action, it cannot be later said that an offence of rape had been committed. It is submitted that the allegation of the petitioner having committed the offence under Section 420 of the Indian Penal Code is absolutely baseless and the petitioner had no occasion to collect any money from the defacto complainant / victim on the promise that it will be returned after the marriage of the petitioner with the de-facto complainant / victim. 4. The learned Public Prosecutor and the learned counsel appearing for the de-facto complainant vehemently oppose the grant of bail. The learned Public Prosecutor points out that the allegations against the petitioner are serious. It is BAIL APPL. NO. 8253 OF 2023 4 submitted that there are sufficient allegations in the First Information Statement of the victim to suggest that the offences alleged against the petitioner have been committed by him. It is submitted that going by the First Information Statement of the victim, she has been living separately from her husband though it is not clear as to whether a divorce has been actually obtained. It is submitted that according to the victim, the petitioner had entered into a relationship with her knowing fully well of her circumstances, including the fact that she had a 15 year old child, and thereafter the petitioner withdrew from the promise of marriage. It is submitted that according to the victim, the petitioner had also obtained huge sums of money from her on the promise that it will be returned after the marriage of the petitioner with the victim. 5. The learned counsel appearing for the de-facto complainant / victim would submit that the petitioner had entered into a relationship with the victim after knowing about her circumstances and after giving her a false promise of marriage. It is submitted that the relationship between the victim and her former husband has been terminated legally as early as BAIL APPL. NO. 8253 OF 2023 5 in the year 2019 (vide order dated 07.06.2019 in O.P.No.39/2019 on the file of Family Court, Kasargod) and therefore, the contention of the learned counsel for the petitioner that there could not have been a promise of marriage, cannot be accepted. It is submitted that the allegations against the petitioner are serious and if the petitioner is granted bail, there is every chance of the victim being influenced and intimidated. 6. Having heard the learned counsel appearing for the petitioner, learned counsel appearing for the de-facto complainant and the learned Public Prosecutor, I am inclined to grant bail to the petitioner. Though it would not be proper for this Court to make any observation regarding the actual nature of the relationship between the petitioner and the victim, the materials produced along with the bail application suggest that the petitioner and the victim were on very close terms for the period from 2021 to 2023. This Court while considering bail application No.8772 of 2022, held as follows:- “9. The admitted case of both parties reveal that they were living together for almost four months. The victim is a widow with two children, while the petitioner is BAIL APPL. NO. 8253 OF 2023 6 a 31 years old. Both are involved in the film industry and are mature, persons. The apartment in which they were living together for several months was jointly taken but in the name of the victim. The Whatsapp chats produced by the petitioner during the period 15-10-2021 onwards, do not reveal any indication of a forcible physical relationship. This Court do bear in mind the contention of the petitioner that even if the entire allegations are assumed to be accepted still it would reveal only a consensual relationship. 10. In this context it is relevant to mention the decisions of the Supreme Court in Deepak Gulati v. State of Hayana (2013) 7 SCC 675, Maheshwar Tigga v. State of Jharkand (2020) 10 SCC 108 and Pramod Suryabhanu Pawar v. State of Maharashtra (2019) 9 SCC 608. It was observed in those decisions that there is a clear distinction between consensual sex and rape. The instances of sexual intercourse arising out of love and passion has to be viewed differently from consent to sex obtained purely on the basis of a promise to marry. 11. Relationships that started with physical attraction followed by love or affection or vice versa cannot be later treated as rape, merely because it failed to BAIL APPL. NO. 8253 OF 2023 7 culminate in a marriage. This is more so when two matured persons live together for months and indulge in a physical relationship repeatedly without any complaint. In such circumstances, it would be difficult to impute, atleats prima facie that the consent to sex was procured on the basis of a promise to marry alone.” The petitioner was already granted interim bail by this Court by order dated 05.10.2023. Since it is submitted that the petitioner has already executed a bond before the Jurisdictional Court on 07.10.2023, I make the interim order absolute and permit the petitioner to continue on bail subject to the same conditions and subject to the following additional conditions/modifications:- (i) Petitioner shall appear before the Investigating Officer in Crime No.925 of 2023 of Chandera Police Station, Kasargod District between 11.00 A.M and 05.00P.M on 18.10.2023 and 19.10.2023 and thereafter, whenever called upon to do so; - (ii) Condition No.(vi) of the interim order shall be modified as follows:- The petitioner shall not leave India during the currency of the bail and the passport surrendered by the petitioner BAIL APPL. NO. 8253 OF 2023 8 pursuant to the condition imposed in the interim order shall continue to remain in the custody of the Jurisdictional Court. (iii)The petitioner shall not harass or intimidate the victim through social media or by any other means. If any of the aforesaid conditions are violated or if any other condition in the order granting Interim Bail to the petitioner is violated, the investigating officer in Crime No.925 of 2023 of Chandera Police Station, Kasargod District may file an application before the jurisdictional Court, for cancellation of bail. It is made clear that the petitioner will be deemed to be in limited custody for the purposes of effecting recovery etc as held by the Supreme Court in Sushila Aggarwal and others v. State (Nct Of Delhi) and another (2020) 5 SCC 1. Sd/GOPINATH P. JUDGE DK 9 BAIL APPL. NO. 8253 OF 2023 ## **`APPENDIX OF BAIL APPL. 8253/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure III ``` ``` THE TRAVEL TICKET TAKEN BY THE PETITIONER FROM DUBAI TO CHENNAI ```