IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 Bail Appl..No. 1088 of 2010 CRIME NO.1662 OF 2009 OF PALARIVATTOM POLICE STATION PETITIONER/ACCUSED -------------------------------------- SAJEEV.S., AGED 27 YEARS, S/O.SADANANDAN, SAJEEV BHAVAN, KUMARAPURAM, HARIPPAD, ALAPPUZHA DISTRICT. BY ADV. SRI.N.HARIDAS SRI.P.N.SASIDHARAN RESPONDENT: COMPLAINANT -------------------------- SUB INSPECTOR OF POLICE, PALARIVATTOM POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ SRI.MANU ROY FOR R THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18/3/2010, THE COURT ON 22/03/2010, PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 1088 OF 2010 ------------------------------------------------------ Dated this the 22nd day of March, 2010 O R D E R The petitioner, Sajeev, seeks anticipatory bail under Section 438 of the Code of Criminal Procedure, as he apprehends arrest in Crime No.1662 of 2009 of Palarivattom Police Station. 2. The offences alleged against the petitioner are under Sections 376, 511 and 420 of the Indian Penal Code. The de facto complainant filed a complaint before the Court of the Judicial Magistrate of the First Class- I, Ernakulam. The complaint was forwarded to the police for investigation under Section 156 (3) of the Code of Criminal Procedure. Accordingly, the Crime was registered. Originally, the Crime was registered against the petitioner and his mother under Sections 376, 312, 313, 511, 506 read with Section 34 of the Indian Penal Code. Later, the name of the mother of the petitioner was deleted from the array of accused. Sections 312, 313 and 506 I.P.C. were also deleted. Section 420 I.P.C. was added. 3. The petitioner had filed B.A. No.7761 of 2010 before this B.A. NO. 1088 OF 2010 :: 2 :: Court for anticipatory bail. The de facto complainant filed an application for impleading. However, B.A. No.7761 of 2010 was withdrawn by the petitioner and it was accordingly dismissed as withdrawn on 22nd January 2010. 4. Thereafter, the petitioner moved an application for anticipatory bail before the Court of the Sessions Judge, Ernakulam. After hearing the petitioner and the de facto complainant, the Bail Application was dismissed as per the order dated 5th February 2010. 5. In the present Bail Application also, the de facto complainant filed an application for impleading. Heard the learned counsel for the petitioner and the learned counsel for the de facto complainant in detail. 6. Several facts are put forward by either party in support of their respective contentions. I think it is apposite to extract the relevant portions of the complaint (which constituted the FIR, later) and also the relevant portions of the Bail Application, to comprehend the rival contentions. B.A. NO. 1088 OF 2010 :: 3 :: Relevant portions of the complaint: “1. The complainant is a business professional working for Cholamandalam Insurance. The 1st accused is working in Chennai. The 2nd accused is the mother of the 1st accused. 1. On 15-2-09, while the complainant was travelling from Thiurvananthapuram to Ernakulam, the 1st accused came to the complainant and introduced himself as an IT professional working at Chennai. The 1st accused by words, acts and behaviour made the complainant believe that he is a trustworthy person. Taking advantage of the attractive character of the 1st accused, he made friendship with the complainant and made the complainant believe that he has sincere love upon the complainant. The 1st accused had regularly used to contact the complainant through phone, which developed into a love affair. The 1st accused had also made the complainant believe that at any condition, he will marry her. 2. The complainant being fascinated over the dream of having a happy married life with the 1st accused trusted him more than B.A. NO. 1088 OF 2010 :: 4 :: anything. The 1st accused had taken the complainant to his house at Harippad and had introduced her to the 2nd accused and his father as his would be wife. The 2nd accused pretending as if she was supporting the 1st accused, had spoke to the complainant through calls on several occasions and had expressed her consent for the marriage. The 1st accused had also contacted the mother of the complainant and also made her believe that he was having serious love affair with the complainant and that he would marry her at any rate. 3. Since the 1st accused could not avail leave to come to Kerala to meet the complainant, he requested the complainant to go to Chennai for a day. On 05-04-09, the complainant reached Chennai. There she was taken to the house of a friend of the 1st accused Mr.Sajeev. R. @ Vyasan who was residing with his wife Madhu and family. The same reasonably created a family atmosphere and that the complainant would be safe and secure if she come to Chennai. 4. On 07-06-09, again at the request of the 1st accused the B.A. NO. 1088 OF 2010 :: 5 :: complainant went to Chennai. The complainant was misled by the 1st accused that he had arranged her return ticket on the same day itself and till then she can stay with the same friend and his family till evening. On that day when the complainant along with the 1st accused to Mr.Vyasan’s house, his door was locked. Thereafter the complainant was taken to the house of the accused which was absolutely a strange place for the complainant. There the complainant shockingly realized that the accused had arranged the return ticket only on the next day. There the 1st accused, without the consent of the complainant had forcefully committed rape upon her. The complainant could not do anything or withstand the physical power of the 1st accused. That place was strange and new to her and she could not protest much of being afraid that is she act against the wish of the 1st accused, she may lose her. She was literally committed rape by the complainant. On the next day, the 1st accused had apologized to the complainant for his mistake and had assured that he will marry her and such an incident will not happen again. There she realized that the entire drama was created by the 1st accused for trapping the complainant. At the same time due to the sincere love upon B.A. NO. 1088 OF 2010 :: 6 :: the 1st accused, the complainant suffered every thing as she does not want to lose him. 5. Similarly the complainant was again called upon to Chennai in the month of June and July, 2009 by the 1st accused threatening her that if she does not go as directed, the 1st accused will not marry her. The complainant was again forced to go to Chennai on both the occasions where the complainant was subjected to cruel physical intercourse by the 1st accused. After the month of July, there was inordinate delay in the menstruation circle of the complainant. The same created a suspicion in the mind of the complainant that whether she was carrying. The matter was immediately informed to the 1st accused and requested him to marry her. When there was no action on the part of the 1st accused, the complainant had informed the same to the 2nd accused. Since the marriage of the sister of the 1st accused was fixed on 27-08-09, the accused requested the complainant to wait for a few days till the marriage was over. On 28-08-09, at the request of the 2nd accused, the 1st accused took the complainant to the district hospital at Kottayam. The doctor had examined the B.A. NO. 1088 OF 2010 :: 7 :: complainant. The 1st accused had discussions with the doctor and thereafter the doctor had prescribed a pill, which the 1st accused had told that was for correcting the menstruation and that she was not pregnant. 6. Thereafter the 1st accused came to her house at Palarivattom on 30-08-09. There the complainant requested the 1st accused to marry her. The 1st accused then informed the complainant that the 2nd accused has told him that without the dowry of Rupees ten lakhs and 100 sovereigns of gold she will not permit the marriage. There the complainant realized that the intention f the 1st accused was to ditch her. There again the 1st accused tried to make forcefully intercourse upon the complainant and rape her against her wish. The accused had physically attempted to rape the complainant. When the complainant protested and threatened the 1st accused that she will shout, he had to retreat. After the complainant started to take the medicine given by the accused, she had severe bleeding for few days. There she shockingly realized that she had been carrying and the accused had caused miscarriage without her consent. She had also realized that the intention B.A. NO. 1088 OF 2010 :: 8 :: of the accused was to avoid her. The intention of the accused is not marry the complainant, instead the 1st and 2nd accused are continuously threatening the complainant that if she walk behind the 1st accused any more requesting him to marry her, they would kill the complainant.” Relevant portions of the Bail Application: 1. Petitioner is a native of Harippad and a member of the Schedule Caste Community. Petitioner is a Graduate in Engineering and specialised in Animation and Multi Media and was serving at Chennai in a company by name “Prasad Colour Laboratory”, where more than 200 persons are employed including many Malayalees. The petitioner has a younger sister, whose marriage took place on 27-8-2009. Herself and her husband Mr. Liju V.M. are at present employed in Kochi. Liju is a native Thrissur, where his mother alone is residing in the Tharavad House. The petitioner’s father is serving as Sub Postmaster at Kareelakulangara in Kayamkulam and his mother is employed in the State Service as Extension Officer Women Welfare in the Block Development Office, Bharanikkavu in Alapuzha District. B.A. NO. 1088 OF 2010 :: 9 :: 2. In February 2009, while the petitioner was travelling from Mavelikkara to Chennai in a train, a lady by name Rosy Zachariah came near to the petitioner and introduced herself as a native of Pangod in Thiurvananthapuram District and working as Financial Advisor in Cholamandalam General Insurance Company at Kottayam. She also said that she is a Graduate in Commerce from Kerala University and belongs to Christian Community. She further informed the petitioner that her mother is a doctor serving in the Military Camp at Pangod and their residence is situated near the 7th Day School at Pangod. She further said her father is having a Super Market at New Delhi. Her attempt was to make it appear that she hails from a rich family with good reputation in the society. The petitioner did not feel any suspicion in her attitude at that time. Thereafter, the petitioner informed her that he is an Engineer working at Chennai at that time at “Prasad Colour Laboratory”. During the journey, she sought for the help of the petitioner introducing the Malayalees serving in the Prasad Colour Laboratory, as and when she visits Chennai. The said Rosy Zachariah collected the mobile telephone number of the B.A. NO. 1088 OF 2010 :: 10 :: petitioner as well as his Office telephone number. Thereafter, she got down at Ernakulam on that day. During the journey, she also informed the petitioner that she travels extensively in connection with her business purposes. Thereafter, she used to contact the petitioner frequently and visited the petitioner at his office few days thereafter at Chennai. Based on the request made by the said Rosy Zachariah, the petitioner introduced some of his colleagues to her and she requested them to help her by taking Insurance policies at her instance and obtained their telephone numbers as well. All these while, the petitioner did not feel any suspicion in her attitude. Thus it became a normal friendship and the petitioner has been treating her only as a friend with sisterly affection. The said Rosy Zachariah once informed the petitioner that her marriage is fixed with one Mr. Rajeev, working as a T.T.E in Southern Railways and on another occasion, she introduced the said Rajeev to the petitioner. While so, the marriage of the petitioner’s sister was arranged to be held on 27-8-2009. The petitioner had distributed the marriage invitation of his only sister to many of his friends including an invitation to the said Rosy Zachariah. The marriage was held at Harippad. The B.A. NO. 1088 OF 2010 :: 11 :: said Rosy Zachariah did not attend the marriage of the petitioner’s sister on 27-8-2009. However, she came to the residence of the petitioner two days thereafter Viz. On 29-8- 2009 quite unexpectedly. She had the lunch at the petitioner’s house and left. The marriage reception on the side of the bridegroom was on 28-8-2009 from 5 P.M. to 7 P.M. at Asoka Inn near Sakthan Thampuram Private stand, Thrissur and therefore the petitioner, his parents, relatives and close family friends left to Thrissur by 9.30 A.M. from Harippad in a Tourist Bus “Variath Travels” and came back only after midnight on 28-8-2009. 3. Few days thereafter, the petitioner left to Chennai. After that, the petitioner could realise that there was a marked change in the attitude of Rosy Zachariah towards the petitioner. On 29.8.2009 she mentioned to the petitioner that her marriage with Rajeev was broken and therefore she is totally upset and very much disappointed. The petitioner reached Chennai subsequent to the marriage of his sister and the said Rosy Zachariah started requesting the petitioner to marry her. The petitioner immediately made it clear that he had no such B.A. NO. 1088 OF 2010 :: 12 :: feelings towards her, not only that he will not take any decision on such matters without the knowledge and consent of his parents and moreover, he is not interested and willing to marry her. Presumably, the reluctance/refusal on the part of the petitioner was taken as an insult by the petitioner. Thereafter, she started threatening the petitioner saying that she will not allow the petitioner to have a peaceful life or to marry anybody else as per the choice of the petitioner and his family. She also started spreading news among the friends of the petitioner that he was having physical relationship with her promising to marry her. The petitioner denied the allegations with his friends. The petitioner stopped contacting her and also refused to meet her. In the meanwhile, the petitioner came to know from reliable sources that the said Rosy Zachariah used to establish unreasonable friendships and contacts with persons to whom she used to establish professional contacts. She vehemently started spreading baseless stories about the petitioner connecting with other ladies. She even went to the extent of sending three goondas from Salem to the office of the petitioner at Chennai. However when the petitioner explained the actual facts to them, they B.A. NO. 1088 OF 2010 :: 13 :: realised the innocence and felt sympathy towards the petitioner and left the office premises of the petitioner requesting to convey news through somebody to the said Rosy Zachariah that the goondas assaulted the petitioner severely so that they will get the entire consideration promised by the said Rosy Zachariah. In fact, one of them had given his Mobile telephone number to the petitioner. Subsequent to the above instance, the petitioner completely avoided all contacts with her and also declined to attend her calls over phones. Hence she vehemently started baseless allegations and cooked up stories for damaging the status and reputation of the petitioner in his office at Chennai at that time. 4. Later Rosy Zachariah filed a frivolous complaint before the Circle Inspector of Police, Ernakulam Town North Police Station during the second week of November 2009. The then Circle Inspector, Sri. Raveendran who was in charge of the office pursuant to the arrangements of duties made in view of the then by-election at the Ernakulam Assembly Constituency, required the petitioner and his parents to meet him at the Station. Accordingly, the petitioner and his parents met the B.A. NO. 1088 OF 2010 :: 14 :: Circle Inspector at his office on Monday 16-11-2009 and explained the entire details in the presence of the said Rosy Zachariah. The Circle Inspector of Police fully convinced and found that the said complaint was frivolous and refused to take any action.” 7. The petitioner has also made several other averments in the Bail Application and stated that the de facto complaint is “living according to her will and desire without having any control of the family and without looking after the needs and requirements of the family and she is a fraud and burden to the family.” 8. I have carefully considered the allegations and counter allegations. I have also perused the case diary. It cannot be said that there are no materials to connect the petitioner with the offence. It is not proper to arrive at any conclusion on facts, while disposing of the application for anticipatory bail. The matter requires investigation. Custodial interrogation of the petitioner may be required in the case. I do not think this is fit case where the petitioner should be granted the discretionary relief under Section 438 of the Code of Criminal Procedure. If anticipatory bail is B.A. NO. 1088 OF 2010 :: 15 :: granted to the petitioner, it would adversely affect the proper investigation of the case. For the aforesaid reasons, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/