IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 Bail Appl..No. 4544 of 2010() ---------------------------------- CRIME NO. 752/2010 0F MUNNAR POLICE STATION ................ PETITIONER/ACCUSED : ------------------------------ RAJESH, PALOLIL HOUSE, MULLARINGADU KARA BY ADVD. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH RESPONDENTS/COMPLAINANT: ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. CIRCLE INSPECTOR OF POLICE MUNNAR. BY SRI. M.S.BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J ----------------------- B.A No.4544 OF 2010 -------------------------------- Dated this the 16th day of August 2010 ORDER This petition is for anticipatory bail. 2. The alleged offence is under Section 376 of I.P.C According to prosecution, petitioner committed rape on de facto complainant at different places on the promise to marry her. 3 Learned counsel for petitioner submitted that as per the allegations in the FIS, petitioner and de facto complainant were in love with each other and they had gone to Adimali and Munnar and stayed in lodges and had sexual relationship. It is further alleged that it is on the promise to marry that the sexual act is committed. De facto complainant is aged 28 years and she is a working woman. She is working as a Dental Assistant at Ernakulam. 4. According to learned counsel for petitioner, de facto complainant knows the consequences of the acts committed and the allegations made that he promised to marry her and that is a reason why she had consented etc. are difficult to be swallowed, in the light of the decision rendered by the Hon'ble Supreme Court and reported in Dileep Singh v State of Bihar 2005(1) SCC Page 88, Even if the entire allegations are accepted, those will B.A No.4544 OF 2010 2 not constitute offence under Section 376 IPC, it is submitted. The only inference that can be drawn on the facts is that she had consented to the sexual relationship and hence no rape is involved, it is submitted. 5. This petition is strongly opposed. Learned Public Prosecutor submitted that as per the allegations made in the FIS, this is a case of rape. The consent is vitiated by a false promise to marry. It is also submitted that petitioner is required for custodial interrogation and hence, this is not a fit case to grant anticipatory bail. 6. On hearing both sides, I am satisfied that petitioner will be required for conducting potency test and his interrogation also will be needed for an effective investigation. Hence, it is not fit to grant anticipatory bail. The petitioner may surrender before the investigating officer or the court concerned and move for regular bail. Regarding the merit of the contention regarding consent, I am not making any observation, since it is likely to prejudice the lower court while considering application for regular bail. 7. Learned counsel for petitioner submitted that the court concerned may be directed to consider the bail application on B.A No.4544 OF 2010 3 merit. It is needless to say that when an application for bail is filed, the court concerned is bound to consider the same on merit and state reasons for rejecting the contentions raised. With the above observations, this petition is dismissed. K.HEMA JUDGE vdv