Allowed

Noushad.T.P. v. State of Kerala

Kerala HC9 Oct 2013Bail Appl./5482/2013

Case brief

AI extract

What is this about?

In an application for pre-arrest bail under Section 438 CrPC, the petitioner accused of rape against a business partner challenged the allegations. The court noted significant financial disputes, cheque bounces, and a six-month delay in lodging the complaint. Finding force in the petitioner's contention regarding the delay and context, the court exercised extraordinary jurisdiction to grant bail s

What did the court decide?

Pre-arrest bail granted conditioned upon surrender within days, posting bond with sureties, weekly reporting, surrendering passport, and prohibiting contact with victim or tampering with evidence.

Noushad.T.P. Vs State of Kerala — Bail and Remand | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.BHAVADASAN

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WEDNESDAY, THE 9TH DAY OF OCTOBER 2013/17TH ASWINA, 1935

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Bail Appl..No. 5482 of 2013 ()

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CRIME NO. 399/2013 OF MEDICAL COLLEGE POLICE STATION , KOZHIKODE

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PETITIONER/ACCUSED:

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NOUSHAD.T.P., S/O.SHAIKH MUHAMMED, AGED 42 YEARS, HASTHINAPURI HOUSE, CHEVAYOOR P.O., KOZHIKODE.

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BY ADVS.SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.T.K.KUNHABDULLA SRI.K.SURESH

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RESPONDENT:

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STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.

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BY ADDITIONAL DIRECTOR GENERAL OF PUBLIC PROSECUTION SRI.K.I.ABDUL RASHEED

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/09/2013 THE COURT ON 09-10-2013, PASSED THE FOLLOWING:

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P. BHAVADASAN, J.

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- - - - B.A. No. 5482 of 2013

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- - - - Dated this the 9^th day of October, 2013.

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ORDER

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This is an application filed under Section 438 of the

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Code Criminal Procedure seeking pre-arrest bail.

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The petitioner stands accused of having

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committed offences punishable under Section 376 of Indian Penal Code. The allegation against the petitioner is that he had committed rape on the victim in October, 2012 and subsequent occasions thereafter also committed rape on the victim first by assaulting her and later by threatening her with dire consequences.

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The petitioner would say that he is innocent and

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has been falsely implicated with ulterior motive. The petitioner claims to be the Managing Director of three companies and the majority of the shareholders of the company are his relatives and friends. As a part of the

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B.A.5482/2013.

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expansion of the business of the company, the company acquired lands in various places. In the process, the petitioner had also purchased lands from the husband of the defacto complainant. Consideration was paid through a Bank and sale deed was executed in respect of one of the properties which had been mortgaged with the Bank. Later, the husband of the defacto complainant approached the petitioner for sale of another 10 cents which had been mortgaged and the petitioner agreed to purchase the same and cleared off the debt due to the Bank. Though the original of the sale deed was given to the petitioner, the husband of the victim refused to execute the sale deed and he issued a cheque for a sum of Rs. 8 Lakhs towards the amount received by him from the petitioner. That cheque on presentation bounced for want of money. The petitioner laid a complaint before the Superintendent of Police, Kozhikode. According to the petitioner, during the enquiry in that matter, it was found that the husband of the defacto complainant was involved in

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B.A.5482/2013.

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several such cases and in some of them he had suffered conviction and sentence. He was apprehended and remanded to custody. The defacto complainant and her husband believed that it was only because of the complaint filed by the petitioner that the husband of the defacto complainant happened to be imprisoned.

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In the meanwhile, there was a commotion among the venders who offered their property to the company for sale that they did so on being promised that they would be given shares in the company. That resulted in the petitioner filing of O.S. 157 of 2012 and an interim injunction order was obtained in favour of the petitioner. In the meantime, several persons including the defacto complainant preferred petitions before the Chief Minister complaining about the activities and conduct of the petitioner. It was sent to the Crime Branch for enquiry. Crimes have been registered against the petitioner. Not satisfied with the said proceedings, the petitioner would say that the defacto complainant and others moved this court

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B.A.5482/2013.

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for constitution of a special investigation team to enquire into the affairs of the company of which the petitioner was the Managing Director and about his activities. The petitioner would point out that he was not made a party to the petition and when he came to know of the same, he sought to get himself impleaded. Soon after he had filed the petition for impleading, the complaint giving rise to the present crime was laid by the defacto complainant. Even though the petitioner has moved this court to quash the FIR, this court declined to do so.

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The petitioner would point out that he has not committed any act as alleged and the allegation of rape is totally baseless, unfounded and made with malafide intention. It is pointed out that the long delay in lodging the complaint itself is sufficient to show that the complaint is false. According to the petitioner, he has not committed the acts as alleged and he seeks pre-arrest bail.

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B.A.5482/2013.

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Learned Public Prosecutor very vehemently opposed the petition. It was pointed out by him that the offence is of serious nature and no leniency be shown to the petitioner and he is involved in several crimes and if pre-arrest bail is granted to the petitioner, that will impede the investigation.

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CD was made available for perusal. Learned counsel for the petitioner and the learned Public Prosecutor were heard.

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It is no doubt true that going by the allegations, the offence attributed to the petitioner is of grave and serious nature. But certain aspects cannot be overlooked. There were financial and other transactions between the petitioner and the defacto complainant as well as the husband of the defacto complainant is the case put forward by the defacto complainant herself. The defacto complainant has a case that

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her husband was promised a share in the business of the crushing unit started by the petitioner herein.

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B.A.5482/2013.

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As per the allegations, not only no share was given to the husband of the defacto complainant, but they

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were deprived of the money also. The complaint would disclose that the petitioner had obtained several cheques from the defacto complainant and on the date of the incident too he had gone to procure cheques from her. When she refused to give cheque, the petitioner attacked her and the sexual assault was committed.

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What is significant is that the complaint is laid after six months of the incident. Still more significant is the fact that by the end of December, 2012, going by the records made available for perusal, the defacto complainant had narrated the incident in which she was sexually exploited by the petitioner to her husband. Of course, the defacto complainant would say that she was threatened with dire consequences by the petitioner if she revealed the incident to anybody. But after having disclosed the entire incident to her husband by the end of December, 2012, it escapes one's

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B.A.5482/2013.

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understanding what prevented the defacto complainant and her husband from preferring the complaint immediately within a reasonable time thereafter. The complainant was five months pregnant at the time of laying the complaint. On going through the records, though it may not be possible to say that the petitioner is totally innocent, there seems to be considerable force in the contention raised by the counsel for the petitioner. Learned counsel for the petitioner has also pointed out that neither in the complaint to the Chief Minister nor in the petition filed before this court seeking constitution of a special investigation team, the complainant had a case of sexual assault on her. According to the petitioner, it was only after the petitioner had filed an impleading petition in the writ petition filed by the defacto complainant and others that the complaint has been filed.

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On going through the records, there appears to be some force in the above submission made by the learned counsel for the petitioner. Considering the totality of the facts

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B.A.5482/2013.

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and circumstances of the case, even though the offence is of a grave nature, it is felt that this is a fit case where the extraordinary jurisdiction needs to be exercised in favour of the petitioner.

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Therefore, this application is allowed on the following conditions:

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i) Petitioner shall surrender before the Investigating Officer on or before 18..10.2013, who, after interrogation, shall produce him before the court concerned, which court, on an application for bail being moved by the petitioner, shall release him on bail on his executing a bond for a sum of Rs.15,000/- (Rupees Fifteen Thousand only) with two solvent sureties for the like sum each to the satisfaction of the said court.

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ii) The court concerned may ensure the identity of the sureties and the veracity of the tax receipts produced by the sureties for the purpose of executing the bond.

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B.A.5482/2013.

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iii) Petitioner shall report before the Investigating Officer on every Wednesday between 9 a.m. and 11 a.m. until further orders.

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iv) Petitioner shall surrender his passport before the court concerned, and if he does not possess one, an affidavit to that effect shall be filed.

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v) Petitioner shall not leave the State of Kerala without the prior permission of the court concerned.

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vi) Petitioner shall not, directly or indirectly, try to get in touch with the victim or her family members.

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vii) Petitioner shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses.

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B.A.5482/2013.

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viii) If any of the conditions is violated, bail granted to the petitioner shall stand cancelled, and the court concerned may take such steps as are available in law.

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P. BHAVADASAN, JUDGE

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sb.

Noushad.T.P. v. State of Kerala

Case brief

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Noushad.T.P. v. State of Kerala

Case brief

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