IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE [ENTITY] FRIDAY, THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940 Bail Appl No. 1170 of 2019 CRIME NO. 44/2019 OF Mavoor Police Station, Kozhikode PETITIONER/ACCUSED: MUHAMMED SHAFEER P., AGED 31 YEARS, S/O.AHAMEDKUTTY, KAMBALATH HOUSE, MAVOOR.P.O., KOZHIKODE-673661. BY ADVS. SRI.C.IJLAL SMT.UMMUL FIDA SRI.R.UDAYA KUMAR RESPONDENT/STATE: THE STATE OF KERALA, REPRESENTED BY THE INSPECTOR OF POLICE, MAVOOR POLICE STATION, KOZHIKODE CITY DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. BY SRI [ENTITY], SENIOR PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Bail Appl No. 1170 of 2019 2 ORDER
This application is filed under [SECTION] of the [ACT].
2. The applicant herein is the accused in [CASE NUMBER] of the Mavoor Police Station. In the aforesaid crime he is accused of having committed offences punishable under [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT].
3. The victim is a lady aged 29 years and is a married woman. She has two children with whom, she is residing in an apartment building. According to her, her relationship with the husband was strained that they have been residing separately after living together for about six years. While so, she met the applicant herein and they got acquainted and the applicant is alleged to have told her that he would marry her. Based on the said assurance they started moving together. It is alleged that on multiple occasions, the applicant entered her apartment and they had a consensual relationship. She had acceded to the wishes of the applicant herein as he promised that he would marry her. This continued for over two years. During this period, she became pregnant on more than one occasions and the applicant herein is alleged to have forced her to consume drugs to abort her pregnancy. Finally when the applicant started ignoring her, she contacted him. It was then that she realized that he was on the verge of getting married to another lady. When she questioned, the sister of the applicant herein is alleged to have slapped on her face. This led to the lodging of the complaint.
4. The learned counsel appearing for the applicant submitted that there is no truth in the allegations levelled against him. According to him, the de facto complainant is a married woman and the applicant was in a live-in relationship with her. He would heavily rely on the decisions of the Hon'ble Supreme Court in [PRECEDENT] and [PRECEDENT] and urged that the case of the de facto complainant, even if admitted to be true in its entirety, would only point to the fact that she had voluntarily and consciously consented to have a sexual relationship with the applicant and her consent was not in consequence of any misconception of fact. The learned counsel would also rely on the decision in Dr. [ENTITY] v. The State of Maharashtra & Ors. (2019 (1) SCALE 64) and contend that there is distinction between rape as well as consensual relationship and in the facts and circumstances, [SECTION] of the [ACT] will not be attracted.
5. The learned Public Prosecutor, on instructions submitted that the victim is in clear terms stated that the applicant herein had subjected her to penetrative sexual abuse and the allegations are grave.
6. I have considered the submissions advanced and have gone through the first information statement as well as the other materials in the case diary. The de facto complainant is an educated lady and has been living estranged from her husband for the past several years. Even according to her, she entered into a relationship with the applicant with full knowledge of the consequences. This continued for over two years. It was when the relation between her and the applicant became strained and they stopped their interaction that the victim has come up with an allegation of rape.
7. In [PRECEDENT] (judgment dated 6.4.2018 in [CASE NUMBER]), the Hon'ble Supreme Court had observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for several years is 'rape', especially in the face of the complainant's own allegation that they lived together.
8. In [ENTITY] (Supra), the Apex Court had occasion to elucidate the principles and it was laid down that there is a clear distinction between rape and consensual sex. The acknowledged consensual physical relationship between the parties would not constitute an offence Under [SECTION] of the [ACT]."
9. In the light of the above precedents and testing the same with the facts of the instant case, I am of the view that the custodial interrogation of the applicant is not necessary for an effective investigation.
In the result, this application is allowed. The applicant shall appear before the investigation officer within ten days from today and shall undergo interrogation. Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.40,000/- (Rupees Forty thousand only) with two solvent sureties each for the like sum. The above order shall be subject to the following conditions:
i) The applicant shall co-operate with the investigation and the shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for two months or till final report is filed, whichever is earlier. He shall make himself available for any medical test that he may need to be subjected to.
ii) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the court or to any police officer, nor shall he tamper with the evidence. He shall not contact the victim or her family members.
iii) He shall not commit any similar offence while on bail.
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.
[ENTITY] JUDGE TRUE COPY P.A. TO JUDGE DSV/23.2.19