In this bail application under Section 438 CrPC for alleged rape offences, the High Court of Kerala granted pre-arrest bail to the accused friend of the victim with sureties, directing break of weeks and case diary submissions.
The bail application was allowed with a bond of Rs.1,00,000/-, weekly court appearance, and prohibition on contacting witnesses.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 6TH DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 BAIL APPL. NO. 1300 OF 2023
CRIME NO.81/2023 OF MANNANTHALA POLICE STATION,
THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
XXX
BY ADVS. R.T.PRADEEP M.BINDUDAS K.C.HARISH
RESPONDENT/STATE:
THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
BY SMT.MAYA M.N., PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 1300 OF 2023
2
O R D E R
This application is filed u/s 438 of the Code of Criminal Procedure seeking pre-arrest bail.
3
BAIL APPL. NO. 1300 OF 2023
the applicant, and if he is released on bail at this stage, it will affect the course of the investigation.
children. The applicant is also a married man. The applicant is the friend of the husband of the victim. The husband of the victim was abroad. The victim was residing in an apartment. The applicant was also having another apartment in the same flat complex. Admittedly the applicant and the victim used to meet. According to the applicant, the first incident of sexual assault took place at the end of December, 2022 at her house. In the FIS, it is alleged that the said sexual assault was done by the applicant without her consent. However, she states that after the said incident, they used to talk over phone and they fell in love. Thereafter, in January, 2023, they had sexual intercourse for 2 to 3 times. It is further alleged that the applicant gave a promise of marriage to her. But it is pertinent to note that such a marriage was not at all possible in view of the fact that the applicant and the victim were already married and both of them knew the said fact. On a reading of FIS, it is seen that the wife of the applicant came to know of the relationship between the applicant and the victim, and the wife of the
4
BAIL APPL. NO. 1300 OF 2023
applicant and her relatives went to the house of the victim on 31.01.2023 and scolded her. Again, thereafter on 01.02.2023 also, the wife of the applicant and her relatives went to the house of the victim and scolded her. It was thereafter, the complaint was filed and consequently FIR was registered. On a reading of the entire FIS, it can be seen that both the applicant and the victim were married, they fell in love and had consensual sex. It appears that their relationship strained when the wife of the applicant came to know about their relationship. It was thereafter, the complaint was filed. Considering the allegations levelled against the applicant , his custodial interrogation does not appear to be necessary. For these reasons, it is a fit case where prearrest bail can be granted to the applicant.
In the result, the application is allowed on the following conditions:-
(i) The applicant shall be released on bail in the event of his arrest on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be.
(ii) The applicant shall fully cooperate with the investigation,
5
BAIL APPL. NO. 1300 OF 2023
including subjecting himself to the deemed police custody for discovery, if any, as and when demanded.
(iii) The applicant shall appear before the investigating officer between 10.00 a.m. and 11.00 a.m. every Saturday until further orders. He shall also appear before the investigating officer as and when required.
(iv) The applicant shall not commit any offence of a like nature while on bail.
(v) The applicant shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.
(vi) The applicant shall not leave the State of Kerala without the permission of the trial Court.
(vii) The application, if any, for deletion/modification of bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.
Sd/-
DR.KAUSER EDAPPAGATH, JUDGE
AS
3 issues framed by the court
Whether pre-arrest bail is maintainable in a case alleging rape under Section 376(2)(l) and 376(2)(n) IPC.
Whether the applicant is entitled to bail considering the alleged consensual nature of the relationship and lack of connection in the evidence.
Whether pre-arrest bail can be granted with specific conditions in a first information note case alleging sexual assault.
1 provisions across 1 enactments
XXX
THE STATE OF KERALA
KAUSER EDAPPAGATH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
