Disposed

Lijo Jose @ Lijo Jose Varghese v. Station House Officer

Kerala HC21 Nov 2019Bail Appl./7568/2019

Case brief

AI extract

What is this about?

The High Court of Kerala disposed of an anticipatory bail application under Section 376 IPC. The court found custodial interrogation not strictly necessary but granted supervision bail with strict conditions regarding reporting, medical tests, and prohibition on approaching the victim's residence or workplace.

What did the court decide?

Grant of bail pending investigation subject to strict conditions including reporting to I.O., medical tests, and prohibition on approaching the victim or residing near her workplace/residence.

Lijo Jose @ Lijo Jose Varghese Vs Station House Officer — Cheque Dishonour | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

THURSDAY, THE 21ST DAY OF NOVEMBER 2019 / 30TH KARTHIKA, 1941

¶5

BAIL APPL.NO.7568 OF 2019

¶6

CRIME NO.1669/2019 OF ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM

¶7

PETITIONER/ACCUSED:

¶8

LIJO JOSE @ LIJO JOSE VARGHESE, AGED 29 YEARS, S/O.LATE VARGHESE, THANNIVELIL HOUSE, MANIMALA.P.O., KOTTAYAM DISTRICT, PIN-686543.

¶9

BY ADVS.

¶10

SRI.BABU CHERUKARA, SRI.P.A.SALIM

¶11

RESPONDENTS/COMPLAINANT:

¶12

1 STATION HOUSE OFFICER, CENTRAL POLICE STATION, ERNAKULAM, ERNAKULAM DISTRICT, COCHIN-682031.

¶13

2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031.

¶14

SRI.AMJAD ALI, PUBLIC PROSECUTOR

¶15

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶16

ALEXANDER THOMAS, J.

¶17

B.A. No. 7568 of 2019

¶18

Dated this the 21^st day of November, 2019

¶19

O R D E R

¶20

The petitioner herein has been arrayed as the sole accused in the instant Crime No.1669/2019 of Central Police Station, Ernakulam, which has been registered for offences punishable under Sec.376 of the IPC. The said case has been lodged on the basis of the FIS given by the lady defacto complainant on 6.8.2019 at about 7.30 pm, in respect of the alleged incidents which have happened for the period from 15.8.2015 to 3.5.2019.

¶21

The brief of the prosecution case as disclosed in the instant FIS is that, the lady defacto complainant aged 28 years is an unmarried woman and that she studied MBA course along with the petitioner accused now aged 29 years who is also an unmarried man, and that the duo developed friendship and later it blossomed into an intense love affair, and that on 15.8.2015 he had taken her to a hotel in Ooty where he had “forcible sexual intercourse” with her, and he had assured her that he would

¶22

..3..

¶23

B.A. No. 7568 /2019

¶24

marry her. Later the petitioner had taken her to various other hotels in various other locations like Kodaikanal, Goa, Ernakulam, etc, and he had taken her to various lodges/hotels where he had “forcible sexual intercourse” with her. That the lady had agreed to go along with him on the basis of assurance of the petitioner that he would marry he. Later he developed cold feet and neglected an abandoned the proposal to marry her and she felt cheated and thus given the instant complaint to the police as an FIS on 6.8.2019 which led to the registration of instant crime.

¶25

The counsel for the petitioner would point out that the abovesaid allegations are false and baseless, and further that a close and intelligent reading of the FIS would make it clear like the blue sky that even if it is assumed for argument sake that the incidents narrated therein are broadly true, then the same would have happened only on the basis of “consensual sexual relationship” between the parties and not otherwise, and therefore none of the vital ingredients of the offence of rape as per Sec.376 of the IPC are made out.

¶26

Further the petitioner's counsel would also place reliance on various decisions of the Apex Court and various High

¶27

..4..

¶28

B.A. No. 7568 /2019

¶29

Courts including this Court which has laid down the legal principles regarding the substantial and vital distinction between rape and consensual sexual relationship, wherein it has been held that where the lady and man have sexual relationship for quite some time, then it cannot be said that, there is an element of rape involved as the relationship is mainly on the basis of consent between the parties, and that mere promise to marry and breach of such promise cannot be the basis to contend that the consent was obtained on the basis of misconception of fact as envisaged under Sec.90 of the IPC, etc. Accordingly it is urged by the counsel for the petitioner that this Court may grant anticipatory bail to the petitioner. It is also pointed out that the alleged incidents are said to have taken place as early as on 15.8.2015 and that prosecution has not given any cogent explanation as to the reason for the long delay in lodging the case and that the delay in this case would fatally vitiate the impugned criminal proceedings.

¶30

The learned Prosecutor has opposed the plea for anticipatory bail and has pointed out that there is a strong possibility of the petitioner intimidating and influencing the lady victim, if he is let out on bail.

¶31

B.A. No. 7568 /2019

¶32

..5..

¶33

After hearing both sides and after careful evaluation of the facts and circumstances of the case, more particularly testing the facts of the case in the light of abovesaid judicial precedents which has dealt with the substantial distinction between rape as per Sec.376 of the IPC and consensual sexual relationship between the parties and the attendant circumstances including the aspect of delay, etc this Court is inclined to take the view that the custodial interrogation of the petitioner may not really be necessary or warranted for the effective and smooth conduct of investigation in this crime. However, taking note of the serious apprehension raised by the prosecution, it is ordered as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station, where the lady victim is residing or working, until the completion of trial process in this case, subject to certain exceptions which will be dealt with hereinafter.

¶34

The learned Prosecutor would also point out that the petitioner has not so far appeared before the I.O., in the conduct of interrogation purposes.

¶35

It is only to be ordered that the petitioner is bound to

¶36

B.A. No. 7568 /2019

¶37

..6..

¶38

fully co-operate with the I.O., in the conduct of interrogation

¶39

process. Hence the following directions and orders are passed.

¶40

i. The petitioner will immediately appear before the Investigating Officer (I.O.) in relation to instant crime for interrogation purposes at 10 am on any day on or before 9.12.2019 or within such time limit that may be extended by the I.O. as he deems fit and proper.

¶41

ii. The petitioner will fully co-operate with the Investigating Officer in the conduct of the above interrogation process.

¶42

iii. After the interrogation process is over, 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/- and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the Investigating Officer concerned.

¶43

Further it is also ordered that the grant of bail will be

¶44

subject to following conditions:-

¶45

i. The petitioner shall appear before the Investigating Officer (I.O.) on every 2^nd and 4^th Saturdays, at any time between 9 am and 1 pm, for the next 4 months, and thereafter he will report before the I.O., as and when required in that connection.

¶46

ii. The petitioner shall fully co-operate with the investigation and should co-operate with the conduct of medical test like potency test, etc if so required by the I.O.

¶47

iii. The petitioner shall not involve in any criminal offences of similar nature.

¶48

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

¶49

B.A. No. 7568 /2019

¶50

..7..

¶51

v. The petitioner shall not go or visit anywhere near the residence or work place of the lady victim until the conclusion of trial process in this case.

¶52

vi. The petitioner shall not enter into or reside within the territorial limits of the Police Station where the lady victim is residing or working until the conclusion of trial process in this case, except for the limited purpose of reporting before the Investigating Officer concerned in this crime or any other crimes, or for attending to the Court in relation to this case or any other cases, or for contacting his lawyers/advocates concerned.

¶53

vii. However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned.

¶54

If there is any violation of the abovesaid conditions by

¶55

the petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time.

¶56

With these observations and directions, the above Bail Application will stand disposed of.

¶57

Sd/-

¶58

ALEXANDER THOMAS, JUDGE

¶59

MMG

Lijo Jose @ Lijo Jose Varghese v. Station House Officer

Case brief

What is this about?

What did the court decide?

Lijo Jose @ Lijo Jose Varghese v. Station House Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.P. Rasheed Vs State of Kerala

Sadique, Vs Sayed Muhammed

Amal Jose Vs State of Kerala

Mohamed Rashid M.P. Vs Fathima K.

Saju Vs the Circle Inspector of Police

K.a.Sudheer Vs State of Kerala