Allowed

Subin Chandran @ Subin.K.C v. State of Kerala

Kerala HC2 Aug 2019Bail Appl./4695/2019

Case brief

AI extract

What is this about?

This bail application arose in a rape case where the petitioner claimed false allegations were made after consensual relationship and settlement. The court found investigation confirmed the complainant stayed with the petitioner during alleged compromise dates, boosting the petitioner's credibility. Anticipatory bail was denied with a mandate for interrogation.

What did the court decide?

Bail granted on bond of Rs.40,000 plus two sureties with conditions including cooperation in interrogation and specific territorial restrictions.

Subin Chandran @ Subin.K.C Vs State of Kerala — Bail and Remand | Kerala HC (2019)

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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 ALEXANDER THOMAS

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FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941

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Bail Appl..No.4695 of 2019

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CRIME NO.402/2019 OF Irinjalakuda Police Station , Thrissur

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PETITIONER/S:

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SUBIN CHANDRAN @ SUBIN.K.C, AGED 41 YEARS S/O. CHANDRAN K.K., KOMBATH HOUSE, PULLUR POST, IRINJALAKKUDA, THRISSUR DISTRICT, PIN-680 683

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BY ADVS. SRI.J.R.PREM NAVAZ SHRI.SUMEEN S.

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RESPONDENT/S:

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

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2 AISWARYA K, AGED 27 YEARS, D/O. BHASKARAN, RESIDING AT KOTTASSERY, FAROKE, KOZHIKODE DISTRICT, PIN- 673 631

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BY ADVS. SRI.S.RAJEEV SRI.D.FEROZE SRI.K.K.DHEERENDRAKRISHNAN

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OTHER PRESENT:

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SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1, SRI.S.RAJEEV FOR R2

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..No.4695 of 2019

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ALEXANDER THOMAS, J .

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B.A.No.4695 Of 2019

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Dated this the 2^nd day of August, 2019.

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O R D E R

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The petitioner has been arrayed as the sole accused in the instant Crime No.402/2019 of Irinjalakuda Police Station, which has been registered for offences punishable under Secs.376 of the I.P.C on the basis of the FI statement given by the lady de facto complainant on 7.5.2019 in respect of the alleged incidents that had happened from 8.5.2019 to 19.6.2019.

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The prosecution case in short is that the lady de facto complainant, who is now aged 26 years, is a graduate and post graduate in law and she has been working in a Gulf country and there she became acquainted with the petitioner-accused, who is now aged 41 years, and they developed an intimate relationship and that he assured that he would marry her and when both of them were in Kerala, he had asked her to come to his house on 10.10.2018 and when she went to his house he had committed forcible sexual intercourse on her. That she went to Gulf country on 31.12.2018 that he had later informed her that he had her

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Bail Appl..No.4695 of 2019

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obscene video pictures of the intimate scenes and based on such blackmail she was forced to yield to his request to go to a hotel in the Gulf country, where they had sexual intercourse for few days and that later also he had blackmailed her using the very same threat and had sexual intercourse on various occasions and also obtained Rs.3 lakhs and 6 sovereigns of gold ornaments from the lady de facto complainant, etc. That only much later, the lady came to know that the petitioner is married and is having 2 children and that he has disclosed it to her.

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The learned counsel for the petitioner would submit that the abovesaid allegations are falsely foisted on the petitioner. It is urged that if the alleged incidents are assumed to be true, then the same could have happened only on the basis of consensual sexual relationship between the parties and so the vital ingredients of the offence of rape as per Sec.376 of the I.P.C are not made out. Further it is stated that earlier, both parties have settled the disputes and the lady de facto complainant had even sworn to an affidavit dated 9.5.2019 before this Court in Crl.M.C.No.3426/2019 filed by the petitioner herein that the abovesaid allegations were made by her due to temperamental differences and misunderstanding and their disputes have been settled and that she has no objection for quashment of the impugned criminal

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Bail Appl..No.4695 of 2019

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proceedings under Sec.482 of the Cr.P.C. This Court as per order dated 30.5.2019 had disposed of Crl.M.C.No.3426/2019 filed by the petitioner-accused herein, giving liberty to the petitioner to withdraw the said Crl.M.C to work out his other appropriate remedies in the manner known to law. It is placing reliance on the said affidavit as one of the grounds in this application that the disputes between the parties have been resolved and the de facto complainant has no objection in quashing the impugned criminal proceedings and that this Court may grant anticipatory bail to the petitioner. The de facto complainant has been impleaded as R-2 in this Bail Application. It appears that the lady de facto complainant has taken the stand that she was forced to swear to the abovesaid affidavit dated 9.5.2019 filed by the petitioner in Crl.M.C.No.3426/2019 before this Court because the petitioner was still having her obscene pictures and she has to yield to blackmail in that regard, etc. However, it appears that the lady de facto complainant has filed yet another FI statement before the Maradu Police Station for similar offence of rape alleged as against the petitioner herein whereby Crime No.1049/2019 of Maradu Police Station has been registered for offences punishable under

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Bail Appl..No.4695 of 2019

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Secs.376, 323 & 506 of the I.P.C in which the petitioner has been arrayed as an accused on the basis of FI statement given on 5.7.2019 on the alleged incidents that had happened on 21.5.2019. In the said FI statement filed in Crime No.1049/2019 of Maradu Police Station, the lady de facto complainant has taken the stand that she has narrated the previous incidents in that crime and it was also stated that she was consistently blackmailed by using her obscene pictures and therefore she has to yield to the compromise and that he had called her to his hotel room in SRM Road, Ernakulam on 21.5.2019 for compromise talks and she had gone there and then the petitioner had again raped her forcibly, etc and that his threat of blackmail, on the basis that he is in possession of her obscene pictures, is continuing and that she had to yield to sexual intercourse as he had shown her, her obscene pictures in his possession, etc.

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The plea for anticipatory bail has been opposed by the Prosecutor as well as Sri.S.Rajeev, learned counsel appearing for the 2^nd respondent-de facto complainant.

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The petitioner has made specific averments in para 5 of the Bail Application which reads as follows:

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Bail Appl..No.4695 of 2019

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“5. It is respectfully submitted that even after lodging Annexure-A1 FIR the petitioner as also the 2^nd respondent was residing together at the instance of the 2^nd respondent/defacto complainant at Hotel Highlight Inn, SRM Road, Ernakulam on 08.05.2019 and at Le Moshe Inn, Calicut from 10.05.2019 to 16.05.2019 and from 17.05.2019 to 21.05.2019 at Highlight Inn SRM Road, Ernakulam and from 21.05.2019 to 18.06.2019 at Lalus Inn, Vyttila, Ernakulam District. The above act and deeds of the 2^nd respondent clearly establishes her malafide intention in registering the above Crime.”

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If the abovesaid allegations in para 5 of the Bail Application are correct, then it appears that even when the lady de facto complainant had sworn to the abovesaid affidavit on 9.5.2019, which was filed before this Court, the lady de faco complainant was sharing the same hotel room with the petitioner on 8.5.2019 in a hotel at SRM Road, Ernakulam and later she has continued to share the hotel room in Calicut from 10.5.2019 onwards. Still further, from 17.5.2019 to 21.5.2019 she has shared the hotel room in the very same Hotel at Ernakulam and from 21.5.2019 to 18.6.2019 also she has shared the hotel room with the petitioner in another hotel in Vyttila, Ernakulam.

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When the case was taken up on a previous occasion, this Court had requested the Prosecutor to get instructions as to whether the Investigating Officer has conducted any investigation on the abovesaid factual aspects and the case was then adjourned.

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Bail Appl..No.4695 of 2019

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Today, when the matter has been taken up for consideration, the learned Prosecutor submits on the basis of written instructions given by Sri.Vijay Sakhare IPS, Inspector General of Police, who is now the Commissioner of Police, Kochi City, as well as by the Inspector of Police, Maradu Police Station, who is the Investigating Officer in respect of the latter Crime No.1049/2019 of Maradu Police Station. The said Investigating Officer has now given written instructions to the Prosecutor to submit that investigation into the abovesaid aspects has been conducted and he had confirmed the occupancy details of the de facto complainant and the accused in the hotels and the lodges within Kochi City and it has been found that the lady de faco complainant had occupied in room No.204 in Hilite Inn, SRM Road, Ernakulam on 08.05.2019 and in room No.108 of the same hotel from 22.05.2019 to 19.06.2019 and that on both occasions apart from the de facto complainant, a male had occupied the room and that copies of the identity proof given at the time of hotel occupancy disclosed that it was the de facto complainant and the accused, etc.

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So, it can be seen that even after the lady de facto complainant has given the latter FI statement on 21.5.2019 in the

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Bail Appl..No.4695 of 2019

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latter Crime No.1049/2019 of Maradu Police Station, it appears that she has stayed with the petitioner from 22.5.2019 to 19.6.2019 in the same hotel room. So also, it is seen that she was occupying the hotel room along with the accused on 8.5.2019 in the hotel at SRM Road. Therefore, prima facie, the abovesaid factual aspects now found out in investigation would probabilise the contention of the accused that the version of the lady de facto complainant lacks credibility and believability. Further, the learned Prosecutor has also submitted on the basis of written instructions from Sri.Vijay Sakhare IPS, Inspector General of Police, who is now the Commissioner of Kochi City, that the State Police Chief has now issued proceedings dated 29.7.2019 directing that the investigation in respect of the latter Crime No.1049/2019 of Maradu Police Station should also be conducted by the Investigating Officer in the present Crime No.402/2019 of Irinjalakuda Police Station since the allegations in the latter crime appear to be in continuance of the former crime and since the de facto complainant is the one and the same and the accused in both cases is also one and the same.

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The learned counsel for the 2^nd respondent would submit that the 2^nd respondent-de facto complainant is now

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Bail Appl..No.4695 of 2019

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residing in Kozhikode District and the learned counsel for the petitioner would submit that the petitioner-accused is now residing in Thrissur District.

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After hearing both sides and on an evaluation of the facts and circumstances in this case, this Court is now inclined to take the view that the petitioner has made out a strong probable case that his custodial interrogation is not necessary or required for effectuating a fair and proper investigation in the present crime. However, the petitioner will have to fully co-operate with the interrogation process. Accordingly, the following orders and directions are issued:

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(i) The petitioner shall personally appear before the Investigating Officer in relation to Crime No.402/2019 of Irinjalakuda Police Station at 9:00 a.m. on any day on or before 17.8.2019 to subject himself for interrogation purposes.

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(ii) The petitioner will fully co-operate with the interrogation process. If the interrogation process is not over on a single day, it will be certainly open to the Investigating Officer to direct the petitioner to appear before him on any subsequent day/s, which the petitioner will have to fully comply.

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(iii) After completing the above interrogation process, in case the Investigating Officer arrests the petitioner, then he shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Fourty Thousand only) and on furnishing two solvent sureties for the like sum each to the satisfaction of the Investigating Officer concerned. Further it is also ordered that the grant of bail will be subject to following conditions:-

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Bail Appl..No.4695 of 2019

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

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

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

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

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(e) The petitioner shall not visit or go anywhere near the residence or workplace of the lady de facto complainant until the conclusion of the trial in the impugned criminal proceedings.

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(f) The petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station within whose limits the lady de facto complainant is residing, until the conclusion of the trial, except for the limited purpose of reporting before the Investigating Officer in this case or in any other crimes and for attending to the court in connection with this case or any other cases or for contacting his advocate/lawyer, etc. However, if there is any emergent and genuine reasons for the petitioner to go to that area, then he may do so only with the prior permission of the Investigating Officer concerned.

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(g) If the petitioner violates 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.

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With these observations and directions, the Bail Application

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stands disposed of.

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Sd/ALEXANDER THOMAS, Judge.

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bkn/-

Subin Chandran @ Subin.K.C v. State of Kerala

Case brief

What is this about?

What did the court decide?

Subin Chandran @ Subin.K.C v. State of Kerala

Case brief

What is this about?

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