Allowed

Vishnu S v. State of Kerala

Kerala HC17 Nov 2022Bail Appl./8244/2022

Case brief

AI extract

What is this about?

The Court granted anticipatory bail on limited custody to a petitioner charged with rape. It directed three days of interrogation by the Investigating Officer before considering arrest, subject to a bail bond with sureties.

What did the court decide?

Application allowed on conditions permitting limited custody for up to three days for interrogation; arrest to be considered based on I.O. proposal followed by bail bond execution.

Vishnu S Vs State of Kerala — Bail and Remand | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

¶4

THURSDAY, THE 17^TH DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944

¶5

BAIL APPL. NO. 8244 OF 2022

¶6

Crime No.505 of 2022 of Kollam East Police Station, Kollam

¶7

PETITIONER/ACCUSED:

¶8

XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV NIREESH MATHEW

¶9

RESPONDENTS:

¶10

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 ADDL.R2.XXX IS IMPLEADED AS PER ORDER DATED 27-10-2022 IN CRL.M.A. NO.1/2022. BY ADVS. PUBLIC PROSECUTOR R.REJI M.V.THAMBAN B.BIPIN SUNEESH KUMAR R. ARUN BOSE THARA THAMBAN

¶11

OTHER PRESENT:

¶12

0 PP SRI.NOUSHAD K.A

¶13

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

BAIL APPL. NO. 8244 OF 2022

¶15

¶16

BECHU KURIAN THOMAS, J.

¶17

B.A.NO. 8244 of 2022

¶18

Dated this the 17^th day of November, 2022

¶19

ORDER

¶20

This is an application for pre-arrest bail filed under Section 438 of the Code of Criminal Procedure, 1973.

¶21

Petitioner is the accused in Crime No.505 of 2022 of Kollam East Police Station, Kollam District, alleging offences under Sections 366, 376(2)(n), 370(2), 354-D(2) of the Indian Penal Code, 1860.

¶22

The prosecution case is that the accused became acquainted with the victim through facebook and on the false pretext of marriage, raped her on 28-02-2022, 17-03-2022, and again on 26-03-2022 and thereafter backed out of the promise and thereby committed the offences alleged.

¶23

Sri. Nireesh Mathew, the learned counsel for the petitioner contended that the prosecution allegations are false and that even if the same is assumed to be true, it will only reveal instances of a consensual relationship between two persons, who had crossed the age of majority. The learned counsel pointed out that petitioner is a young man of 22 years, and is a soldier in the Indian Army and also that the parties knew each other from their school days and were maintaining a relationship with each other. According to the learned counsel, even

¶24

¶25

BAIL APPL. NO. 8244 OF 2022

¶26

though, petitioner always had the intention to marry the victim, due to certain issues that cropped up their relationship could not be carried into a marriage and that by itself, is not a reason to allege the physical relationship between them, if any, as a rape. It was also pointed out that at no point of time had the victim ever resisted the alleged physical union between them and also that the present allegation is an afterthought and solely as a measure of revenge against the petitioner.

¶27

Sri.R.Reji, the learned counsel for the defacto complainant, additional 2^nd respondent on the other hand, opposed the application and submitted that petitioner had very explicitly conveyed that he had an intention to marry and procured her consent on the said promise, which from the very inception itself was false and, therefore, the act of physical relationship between them was a clear instance of rape. He pointed out that a ‘thali’ was even tied around her neck in a bid to procure her consent. According to the learned counsel for the defacto complainant, custodial interrogation is essential to bring out the truth of the allegations.

¶28

Sri. Noushad K.A, the learned Public Prosecutor, also opposed the grant of anticipatory bail and contended that the allegations are serious which require custodial interrogation. It was also pointed out that since the petitioner is a soldier, there is every chance that he may intimidate and influence the witnesses and therefore without the custodial interrogation the truth will not be able to be brought out.

¶29

¶30

BAIL APPL. NO. 8244 OF 2022

¶31

I have considered the rival contentions and have also perused the case diary.

¶32

Even though the learned counsel for the victim had alleged that a ‘thali’ there was tied at a temple by the name Puthiyakavu, curiously, no material of any nature could be produced to indicate that there was any such occasion. I have also carefully gone through the alleged Whatsapp chats between the petitioner and the victim, produced by the victim herself. None of those chats indicate prima facie that there was any promise to marry. However, having regard to the nature of allegations, I am of the view that the same are serious in nature, which requires interrogation.

¶33

In this context, it is apposite to refer to the decisions in Deepak Gulati v. State of Haryana (2013) 7 SCC 675, Maheshwar Tigga v. State of Jharkand (2020) 10 SCC 108 and also Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608 , where the Supreme Court observed that there is a distinction between a mere breach of promise to marry and not fulfilling a false promise. It was also observed that there may be cases where the prosecutrix agree to have sexual intercourse on account of her love and passion for the accused and not solely on account of misrepresentation made to her by the accused or where an accused on account of circumstances beyond his control, was unable to marry her, despite

¶34

¶35

BAIL APPL. NO. 8244 OF 2022

¶36

having every intention to do so. Such cases must be treated differently.

¶37

I am prima facie satisfied that the circumstances do indicate a different treatment to be adopted in this case. However as observed by me earlier, since the allegations are serious it is essential for the purpose of investigation to interrogate the petitioner. I am also satisfied that in the light of the decisions in Gurbakshsingh Sibbia v. State of Punjab ( 1980) 2 SCC 565 as well as Sushila Aggarwal vs State (Nct Of Delhi) ( 2020) 5 SCC 1 , that limited custody would suffice the investigation.

¶38

Accordingly, this application is allowed on the following conditions:

¶39

(i) Petitioner shall appear before the Investigating Officer for three consecutive days from 24-11-2022 till 26-11-2022 from 9.am to 6.pm and shall subject himself to interrogation.

¶40

(ii) If after interrogation, the Investigating Officer proposes to arrest the petitioner, then, he shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum before the Investigating Officer.

¶41

BAIL APPL. NO. 8244 OF 2022

¶42

¶43

(iii) Petitioner shall appear before the Investigating Officer as and when required and shall also cooperate with the investigation.

¶44

(iv) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the defacto complainant or her family members.

¶45

(v) Petitioner shall not commit any similar offences while he is on bail.

¶46

(vi) Petitioner shall not leave India without the permission of the Court having jurisdiction.

¶47

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.

¶48

AJM/27/7/22

¶49

BECHU KURIAN THOMAS JUDGE

Vishnu S v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vishnu S v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ismail Vs S.H.O Punalur Police Station

Krishna Prasad Vs the Sub Inspector, Malayinkeezhu

Onankunju.a.a. Vs State of Kerala

Alice Vs the State of Kerala

Sofikul Islam Vs State of Kerala

Sudheer Vs Station House Officer