IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 Bail Appl..No. 626 of 2010() -------------------------------- CRIME NO. 988/2009 OF PUTHENCRUZ POLICE STATION, ERNAKULAM DISTRICT .................... PETITIONER/ACCUSED: --------------------------- JITTIMON JOSEPH @ KUNJUMON @ KOCHUMON, AGED 30 YEARS, S/O. JOSEPH, MAMALATHAZHATH HOUSE, RAMAMANGALAM P.O, ERNAKULAM. BY ADV. SRI.K.V.SABU RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. M.S.BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 08/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. ------------------------ B.A. No. 626 of 2010 ------------------------------ Dated this the 8th day of February, 2010 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.988/2009 of Puthencruz Police Station, Ernakulam District. 2. The offences alleged against the petitioner are under Section 376 of the Indian Penal Code and Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. The petitioner moved an application for Anticipatory Bail before the Sessions Court. That application was dismissed. He also moved High Court for Anticipatory Bail. That application was also dismissed. Later, the petitioner surrendered before the Court on 20.01.2010 and he was remanded to judicial custody. 4. The petitioner moved an application for bail before the Sessions Court. That application was dismissed by the order dated 28.01.2010. The learned Sessions Judge held as follows: “Going by the investigation so far conducted by the Police, as borne out by the case diary file, the petitioner was maintaining an illicit relationship B.A. No. 626 of 2010 2 with the de facto complainant herein for the past several years. In the meanwhile, the petitioner contracted a marriage with a woman in December 2007. However, that marriage did not last long, as the wife of the petitioner came to know about the illicit relationship of the petitioner with the de facto complainant. The case diary file would also go to show that the wife of the petitioner got a decree of divorce from the petitioner and thereafter also the petitioner continued his relationship with the de facto complainant. The prosecution case is also to the effect that when the petitioner made an attempt to contract yet another marriage with a view to avoid the de facto complainant, she lodged the complaint before the Police Station concerned and this crime was registered. The de facto complainant is stated to have been subjected to sexual intercourse on several occasions by the petitioner during the period from July 2004 to July 2009 making her believe that the petitioner would marry her. Of course, the de facto complainant as on the date of registering this crime was aged 29 years. But, as pointed out by the learned Prosecutor, it is now a settled position of law that consent obtained by fraud or misrepresentation is no consent. The investigation of the case is only at the initial stage. B.A. No. 626 of 2010 3 Most of the material witnesses are yet to be questioned. While such investigation is in progress, I am of the considered view that the petitioner cannot be released on bail. It follows that this application is without any merit.” 5. The investigation has progressed thereafter. The petitioner was given in the custody of the police. It is stated that he had made a disclosure statement also. 6. Taking into account the facts and circumstances of the case, the duration of the judicial custody undergone by the petitioner, the nature of the offence and the present stage of investigation, I am of the view that bail can be granted to the petitioner on stringent conditions. 7. The petitioner shall be released on bail on his executing bond for Rs.25,000/- with two solvent sureties each for the like amount to the satisfaction of the Judicial Magistrate of the First Class, Kolenchery subject to the following conditions:- A) The petitioner shall report before the Investigating Officer between 9 A.M. and 11 A.M. on all Mondays and Thursdays for two months and thereafter on Mondays, till the final report is filed or until further orders. B.A. No. 626 of 2010 4 B) The petitioner shall appear before the Investigating Officer for interrogation as and when required. C) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence. D) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail. E) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. K.T. SANKARAN, JUDGE ln