Abdul Rehman vs State Of Kerala And Anr

This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.

The petitioner is the accused in Crime No.562 of 2020 of Vanitha Cell, Pathanamthitta. The above case is registered against the petitioner alleging

offences punishable under Sections 376(2) (n) and 406 of IPC. The offence under Section 66 E and 67 of Information Technology Act is also alleged.

The prosecution case is that the petitioner under the pretext to release the husband of the defacto complainant from judicial custody, collected an

amount of Rs.5,00,000/- from the complainant.

Thereafter under the pretext of meeting a lawyer, the victim was taken to a lodge and from there the petitioner committed forcible rape on the victim.

Thereafter, the petitioner committed sexual intercourse with the victim on several occasions. Subsequently, the husband was released from jail. Then

the husband became suspicious about the relationship between the petitioner and the victim. Thereafter the victim left the house. According to her, she

travelled with the petitioner at different places. During that period also, it is alleged that the petitioner committed rape on the victim. It is also alleged

that the petitioner took nude photographs of the victim and threatened the victim that he will upload the same in social media. These are the allegations

against the petitioner.

Heard the counsel for the petitioner and the learned Public Prosecutor.

The counsel for the petitioner submitted that even if the entire allegations are accepted in toto, no offence under Section 376 IPC is made out. The

counsel submitted that the petitioner is aged 36 and the victim is aged 32. The counsel submitted that it is clear from the statement given by the victim

that if at all any sexual intercourse was there that is with her consent. The counsel also submitted that the admitted case of the victim that she

travelled along with the petitioner at different places including Chennai, Bombay, Delhi etc., The counsel submitted that these facts will show that the

sexual intercourse was with the consent of the victim. The counsel submitted that the petitioner is ready to abide any conditions if this Court grant him

bail.

The Public Prosecutor seriously opposed the bail application. The Public Prosecutor made available the F.I statement given by the victim in this

case. The Public Prosecutor submitted that custodial interrogation of the petitioner is necessary.

After hearing both sides, I think this is not a fit case, in which orders under Section 438 of the Cr.P.C can be issued. The Public Prosecutor

submitted that the custodial interrogation of the petitioner is necessary. Counsel for the petitioner submitted that the petitioner is ready to surrender

before the investigating officer and co- operate with the investigation. Consideration of bail application under Section 438 and consideration of bail

application under Section 437 Cr.P.C are different. Considering the entire facts and circumstances, I think this bail application can be disposed of with

the following directions:

The petitioner will surrender before the Investigating Officer within ten days from today.

If the petitioner surrender before the Investigating Officer, the Investigating Officer can interrogate him. After interrogation if the petitioner is

arrested, he will be produced before the jurisdictional court on the same day.

At that stage, if any bail application is filed by the petitioner after giving prior notice to the Prosecutor concerned, the learned Magistrate will

consider the bail application preferably on the date of filing of the same itself.