IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941

Bail Appl..No. 1848 of 2019

AGAINST THE ORDER/JUDGMENT IN CRMC 391/2019 of DISTRICT COURT
SESSIONS COURT, ERNAKULAM DATED 28-02-2019

CRIME NO. 54/2019 OF Kottappady Police Station , Ernakulam

PETITIONER/ACCUSED:

SUJITH K.S.
AGED 32 YEARS
S/O SUKUMARAN, KOZHIKKODATH HOUSE, SEBIYOOR WEST
COLONY, MALAYATOOR ERNAKULAM 683 587

BY ADVS.
SRI.P.B.AJOY
SRI.P.A.MUJEEB

RESPONDENT/STATE/DE FACTO COMPLAINANT(VICTIM):
1 STATE OF KERALA,
REPRESENTED BY SHO OF KOTTAPADY POLICE STATION,
THROUGH THE THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.

2 HONEYMOL K.U., (VICTIM), AGED 31 YEARS, D/O. K.V.
UNNIKRISHNAN, KOCHUPARAMBIL HOUSE, MALAYATOOR P.O.,
ELLITHODU EVERGREEN BHAGAM, MALAYATOOR VILLAGE,
ERNAKULAM 683 587

OTHER PRESENT:
SRI.AMJAD ALI, PUBLIC PROSECUTOR

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No. 1848 of 2019

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ALEXANDER THOMAS, J.
———————–
Bail Appeal No. 1848 of 2019
———————–
Dated this is 9th day of April, 2019

ORDER

The applicant herein who stands arrayed as the sole accused in crime

no.54/2019 of Kottapady police station registered for offences punishable

under Sections 406, 420, 376, 313 and 323 of IPC, has approached this

court seeking grant of anticipatory bail.

2. The brief case of the prosecution allegation is that the petitioner

had offered the lady defacto complainant, who is a married woman, aged 31

years and having a minor son aged 9 years that he would arrange her visa

to Canada and had taken money from her and had obtained gold

ornaments and cash in that regard and on the pretest that she will have to

undergo medical examination test in Bangalore for processing her visa

application, she was taken by the petitioner to Bangalore. Later, the

petitioner had promised the defacto complainant that he would marry her

and help her in resolving her divorce proceedings with the present husband

and believing his version she had undergone sexual intercourse with him

on several occasions in Bangalore and later the petitioner had confessed to
Bail Appl..No. 1848 of 2019

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her that initially when they had gone to Bangalore he had put some

intoxicated drink and then forcefully committed sexual intercourse with

her without her consent and knowledge and had threatened her that he

would use her video-graphed pictures. Further that the Canadian visa as

promised, were never fulfilled by the petitioner and further that in the

above sexual intercourse with the petitioner she got pregnant and the

petitioner had given her a pill saying that it is for the headache and later

when taken the pill she had to face abortion of the foetus and the petitioner

has given the pill to her for effecting the abortion without her consent and

knowledge.

3. Learned counsel for the petitioner would point out that a close

and intelligent reading in between the lines of the complaint of the defacto

complainant, clearly indicates that even going by her version, she is a

married woman who had admittedly on her own volition, had gone

Bangalore, along with the petitioner and had sexual intercourse with him

on various days on the basis that he had promised to marry her after she

obtains divorce and that later he retracted from his promise. Further, it is

pointed out that no medical records or other materials presented by the

prosecution to even remotely suggest that the lady defacto complainant

had suffered any abortion except self serving allegations made by her. It is

further pointed out that in the divorce petition filed by her husband, the
Bail Appl..No. 1848 of 2019

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petitioner was made as a co-respondent being the alleged

paramour/adulterer. It is further pointed out that a crime was registered

against the person who had taken money from the lady defacto

complainant and others with the promise of arranging Canadian visa and

the lady defacto complainant and others were the victims in that crime and

later they had settled the said crime as per Annexure A6 before the

Mediation Sub Centre, Perumbavoor wherein the accused in the said crime

had agreed to return back the amounts collected for the visa to the victims

like the defacto complainant herein.

4. In the light of these aspects the learned counsel for the

petitioner would point out that the allegation of rape is not disclosed for

the simple reason that the entire incidents has occurred only on account of

the consensual sexual relationship between the parties. Further that the

allegation made by her that about the petitioner committing sexual

intercourse without her knowledge etc has been made on the premise that

he had confessed the said aspect to her husband and apart from that

allegation no objective basis has been made out in the said allegation and

taking note of the all aspects mentioned above, it can be easily gathered

that the above allegations are falsely made for the extraneous consideration

by the defacto complainant. Further, it is pointed out that since admittedly

the defacto complainant is a married woman there is no question of acting
Bail Appl..No. 1848 of 2019

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upon any false promise that the accused would subsequently marry the

defacto complainant, who is already a married woman, after getting divorce

and that in the facts and circumstances of the case, it cannot be said that

consent has been procured on the basis of misconception of facts as

envisaged under Section 90 of IPC. Learned counsel for the petitioner has

urged that the case of the defacto complainant, even if admitted to be true

in its entirety, would only point to the unerring fact to the irresistible

conclusion that she had voluntarily and consensually consented to have a

sexual relationship with the applicant and her consent was not in

consequence of any fraud committed by the petitioner or on account of any

misconception of fact as per Section 90 of IPC. Contending that there is

substantial difference in between rape as well as consensual relationship

and in the facts and circumstances of the case, offence under Section 376 of

IPC will not be attracted and judicial precedents in that regard have been

cited. It is pointed out that the allegations are falsely made and that this

court may grant anticipatory bail to the petitioner herein.

5. The learned Public Prosecutor has opposed granting of

anticipatory bail and submitted that since the investigation has not been

completed, anticipatory bail cannot be granted, at this stage.

6. After hearing both sides and after taking into account the facts

and attendant circumstances of this case and testing the facts of the case, in
Bail Appl..No. 1848 of 2019

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the light of the judicial precedents mentioned above, this court is of the

considered view that the custodial interrogation of the petitioner may not

really be warranted in the facts of this case. At the same time, necessary

directions should be issued so as to ensure that the interrogation of the

petitioner/accused be completed without any other delay, so that the

investigating officer could take steps to finalize the investigation without

any further delay.

Accordingly the following orders are passed:

(i) The petitioner shall personally appear before the

Investigating Officer in relation to Crime No.54/2019 of

Kottapady Police Station and to subject himself for

interrogation process at 10 a.m. on any day on or before

20.04.2019.

(ii) Petitioner will fully co-operate with the Investigating
Officer in the interrogation process. If the investigating
officer shall insist that the petitioner shall undergo potency
test etc, then he should co-operate in that regard. If the
interrogation process is not over on a single day then the
investigating officer will be at liberty to direct the
petitioner to appear before him on any other near day as
may be found suitable by the investigating officer, to
which, the petitioner will fully co-operate. After
completing the above interrogation process, in case, the
Bail Appl..No. 1848 of 2019

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Investigating Officer arrests the petitioner in relation to
the above said crime, then he shall be released on bail on
his executing bond for Rs.40,000/- (Rupees Forty
Thousand only) and on furnishing two solvent sureties for
the likesum each to the satisfaction of the Investigating
Officer concerned.

However, in that eventuality, the grant of bail will be subject to the

following conditions:

(a) Petitioner shall not involve in any criminal offences of similar nature.

(b) Petitioner shall fully co-operate with the investigation.

(c) Petitioner shall report before the Investigating Officer as and when
required in that connection.

(d) Petitioner shall not influence witness or shall not tamper or attempt
to tamper evidence in any manner, whatsoever.

(iii) The petitioner shall not go anywhere near to the residence of the
defacto complainant.

(iv) The petitioner shall not enter into or reside anywhere
within the territorial limits of the district, where the lady
defacto complainant is residing, until the conclusion of the
trial process, except to the limited purpose of reporting to
the Investigating Officer in relation to this crime or any
other crime or for attending any courts in relation to this
case or for contacting his Advocate/Lawyer concerned.

(v) If the petitioner does not comply with the directions issued
by this Court subject to the interrogation process, then the
benefit of the directions issued by this Court will
Bail Appl..No. 1848 of 2019

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automatically stand vacated without any further orders of
this Court.

If the petitioner violate all or any of the bail conditions, then the
jurisdictional court concerned will stand hereby authorised, to
consider the plea for cancellation of bail, if required, in accordance
with law.

SD/-

ALEXANDER THOMAS

shg JUDGE