Allowed

Joshy, v. the State of Kerala

Kerala HC9 Apr 2019Bail Appl./2199/2019

Case brief

AI extract

What is this about?

This court disposed of an anticipatory bail application filed by the first accused in a rape case involving allegations of sexual intercourse resulting in pregnancy. The court held that custodial interrogation is not necessary but directed the accused to appear for interrogation and granted bail subject to strict conditions if arrested.

What did the court decide?

Anticipatory bail granted subject to conditions: appearance for interrogation, cooperation with investigation, no influence on witnesses or complainant, and execution of a bond with sureties.

Joshy, Vs the State of Kerala — Bail and Remand | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

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

¶5

Bail Appl..No. 2199 of 2019

¶6

AGAINST THE ORDER/JUDGMENT IN CRMC 264/2019 of DISTRICT COURT & SESSIONS COURT,KOZHIKODE

¶7

CRIME NO. 647/2018 OF Mukkom Police Station , Kozhikode

¶8

PETITIONER/IST ACCUSED:

¶9

JOSHY, AGED 46 YEARS S/O.THOMAS, MULLOOR HOUSE, GOTHAMBA ROAD, NELLIKKAPARAMBU P.O., MUKKOM, KOZHIKODE DISTRICT.

¶10

BY ADV. SRI.K.RAKESH

¶11

RESPONDENTS/STATE & COMPLAINANT:

¶12

1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.

¶13

2 THE STATION HOUSE OFFICER,

¶14

MUKKOM POLICE STATION, KOZHIKODE DISTRICT, PIN - 673 602.

¶15

OTHER PRESENT:

¶16

SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR

¶17

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶18

Bail Appl..No. 2199 of 2019

¶19

¶20

ALEXANDER THOMAS, J.

¶21

- - - - - - - - - - - - - - - - - - - - - - - Bail Application No. 2199 of 2019

¶22

- - - - - - - - - - - - - - - - - - - - - - -

¶23

Dated this the 9^th day of April, 2019

¶24

O R D E R

¶25

The petitioner is the first accused no. in crime No.647/2018 of Mukkom Police Station, wherein offences punishable under Sections 109, 363, 376(2)(j) and 506 r/w. Section 34 of IPC.

¶26

The lady defacto complainant in this case is a married woman aged 34 years, having three children and her husband is working in a gulf country. She would allege that she became acquainted with one Joshy (A1) who in turn introduced her to a lady by name Bushara. She had gone along with the said Bushara to a house at Mampetta where the petitioner Joshy (A1) was also there and later he subjected to rape. Further she would allege that some other persons have also approached her for sexual intercourse and she was threatened not to disclose the incident to any other person. Further, she would allege that thereafter one Abdul Rahman @ Mujeeb had approached her and offered to provide solace and that she had disclosed the entire incidents to him and Abdul Rahman had also subjected her to sexual intercourse by threatening and later she became pregnant and she

¶27

Bail Appl..No. 2199 of 2019

¶28

¶29

informed the said aspect to Abdul Rahman and he instructed her to take some medicine to cause miscarriage. Ultimately, she delivered a child on 9.08.2018 and her husband came to know about the said incident.

¶30

Further, it appears that, according to the lady defacto complainant, she was taken to different places and some of the incidents have taken place within the territorial limits of Mukkom police station, Kozhikode district, the other incidents have taken place within the limits of Areakode Police station, Malappuram district and accordingly the instant crime no.647/18 was registered by the Mukkom police and crime 274/2018 was registered by the Areakode police in Kozhikode district.

¶31

It is pointed out by the petitioner that accused no.3 in crime 274/2018 has approached this court by filing anticipatory bail application No.8167/2018. After elaborately hearing both sides and after evaluating the case diary file, this court has opined in paragraph 6 of the order dated 17.1.22018 that this court deemed it not safe to rely on the statement of the de facto complainant at this stage, as it is full of embellishments from her earlier statement as her earlier version given before the Areakode police was in major divergence with her subsequent version given before the Mukkom police. Further, this court has observed that the question as to whether the allegations of the lady de facto complainant would constitute a case of rape as per Section 376 of IPC or whether it is a case of consensual

¶32

Bail Appl..No. 2199 of 2019

¶33

¶34

sexual intercourse is to be meticulously probed and analysed. In the light of the factual aspects and attending circumstances having gone through the materials, this court is of the considered view that the custodial interrogation of the application is not necessary for an effective investigation. Moreover, it is seen that the lady defacto complainant had disclosed the said allegations more than one year after the alleged incidents and that too her husband was come to notice it when she had delivered a baby.

¶35

Counsel for the petitioner has pointed out that, as per the allegation raised by the lady defacto complainant, one Bichi @ Abdul Rahman who is one of the accused in crime no.274/2018 of Areakode police station is responsible for her pregnancy, which led to her subsequent delivery of the child.

¶36

In the light of these aspects, the learned counsel for the petitioner would submit that this court may grant anticipatory bail to the petitioner subject to any stringent conditions. But the learned Public Prosecutor opposed the plea for anticipatory bail and submits that the investigation has not so far been completed and this court may not grant pre-arrest bail to the petitioner.

¶37

On hearing both sides and taking into consideration the above

¶38

Bail Appl..No. 2199 of 2019

¶39

¶40

said factual aspects and the attendant circumstances, 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.

¶41

Accordingly the following orders are passed:

¶42

(i) The petitioner shall personally appear before the Investigating Officer in relation to Crime No.647/2018 of Mukkom Police Station and to subject himself for interrogation process at 10 a.m. on any day on or before 20.04.2019.

¶43

(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. In this process, if the investigating officer insists that petitioner should

¶44

Bail Appl..No. 2199 of 2019

¶45

¶46

undergo potency test he should comply with that process also. After completing the above process, in case, the Investigating Officer arrests the petitioner in relation to the abovesaid 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.

¶47

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

¶48

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

¶49

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

¶50

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

¶51

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

¶52

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

¶53

(iv) 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 automatically stand vacated without any further orders of this Court.

¶54

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

¶55

Bail Appl..No. 2199 of 2019

¶56

¶57

with law.

¶58

With these observations and directions, the above Bail Application

¶59

will stand disposed of.

Sd/-

ALEXANDER THOMAS

JUDGE

shg

Joshy, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Joshy, v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Naseer Vs the Station House Officer

Safiya Abdulla Vs State of Kerala

Rajeswary Vs Chellappan

Shihab U.H., Vs State of Kerala

Jismon@Rojas Vs State of Kerala

Nibin Vs State of Kerala