Abhijith Prakash vs State Of Kerala

Bechu Kurian Thomas, J

Petitioner apprehends arrest in Crime No.1476 of 2021 of Adimali Police Station, Idukki. He faces an indictment for the offences under sections 376, 376(2)(n) of the Indian Penal Code, 1860.

The gist of the prosecution case is that the victim and the petitioner, who were classmates at school, renewed their friendship in the year 2017 and since the defacto complainant was separated from her husband, he committed forceful sexual intercourse with her in a house-boat. Later, under the promise of marriage, petitioner is alleged to have committed sexual intercourse with the defacto complainant several times at different locations and even lived together with her. The prosecution also alleges that on 20.04.2021, petitioner committed rape on the defacto complainant inside an Alto car after promising to marry her and thereafter repeated the same on several occasions and thereby satisfied his lust.

Sri.B.A.Aloor, learned counsel for the petitioner contended that though the petitioner and the defacto complainant had a consensual sexual relationship, there was never any instance of rape and that the defacto complainant herself was a married woman until 06.12.2021 and therefore the offence of rape against the petitioner cannot sustain. Sexual intercourse with the promise of marriage cannot amount to rape when the victim herself is a married lady and she entered into the sexual relationship fully conscious of her subsisting marriage. It was further submitted that the petitioner is a policeman and that the attempt of the defacto complainant is only to coerce the petitioner to yield to her illegal demands.

Sri. Noushad K.A., learned Public Prosecutor opposed the contentions of the petitioner and submitted that the defacto complainant was on the verge of a divorce and exploiting her emotional condition, the petitioner utilised their acquaintance to compel the defacto complainant to enter into a sexual relationship. According to the learned Public Prosecutor, as a police officer, the petitioner should not have indulged in such an offensive conduct and hence he should not be granted anticipatory bail. It was further contended that the conduct of the petitioner comes within the purview of section 376 IPC and that custodial interrogation is essential.

Sri.C.K.Vidyasagar, learned counsel for the defacto complainant contended that the petitioner exploited the defacto complainant on several occasions with a clear promise of marriage. The petitioner was fully aware of the situation of the defacto complainant that she was separated from her husband from 2015 onwards and with the promise of marriage, he indulged in the sexual relationship and that the consent to sex was granted only after he promised to marry her. It was pointed out that on 20.4.2021, in an attempt to convince her about his intention to marry her, he had even tied a Thali in front of a temple and assured the gullible defacto complainant that he will marry her and thereafter indulged in sex inside the car, which clearly indicates rape under law. According to the learned counsel, when an initial complaint was filed on 09.05.2021, the petitioner cajoled the defacto complainant and finally deceived her into withdrawing the said complaint after assuring her that he will marry her immediately after she obtains a divorce. Acting on his words, she proceeded with the divorce and when she obtained the decree, petitioner retracted from his promise and refused to marry her and has thereafter proceeded to get engaged to another lady.

I have considered the contentions raised by either counsel.

Petitioner is a policeman, bound to maintain the law and order. At the time of the alleged promise to marry, petitioner was not married. On the basis of the alleged promise, the victim went ahead and obtained a divorce from her husband on 06.12.2021. After the defacto complainant obtained a divorce, the petitioner backtracked from his promise. It is alleged that to convince the victim, the petitioner had even tied a thali on her in front of a temple. Immediately afterwards, he compelled her to have a sexual relationship inside the car near the temple. The alleged act of tying a Thali in front of a temple and immediately thereafter allegedly indulging in sex inside the car according to the victim was an act of conveying a clear promise of marriage and getting her consent for the sexual relationship. Therefore, the possibility of a direct link between the promise to marry and obtaining consent to sex is more probable and requires to be probed into, in detail. The allegation that even in front of her whole family, the petitioner had indicated his intention to marry her and on that basis, she consented to have sex also cannot be ignored.

The decision relied upon by the learned Counsel for the petitioner in XXX v. State of Kerala and Another (2022 (1) KLD 780) is not entirely applicable to the facts of the case since in the instant case the victim obtained a divorce and the complaint was filed only thereafter. Further, when the earlier complaint was lodged, petitioner had convinced her about his intention to marry immediately after the divorce and on that assurance the victim had even withdrawn her complaint and obtained a divorce. Even the decision in Vijay Babu v. State of Kerala and others (2022 (4) KHC 332) is not applicable to the facts of this case.

In this context it is apposite to note the decision in P.Chidambaram v. Directorate of Enforcement [(2020) 13 SCC 791], wherein the Supreme Court had observed that each case for bail will have to be considered on a case-to-case basis. Viewed in the above perspective, the situation arising in the instant case is different from the cases referred to by the learned counsel for the petitioner

The allegations indicate the repeated offer of marriage by the petitioner, who was not a married person, while the victim acting on the promise, obtained the divorce from her earlier marriage but thereafter, the petitioner has withdrawn from his promise. This is a case where custodial interrogation is essential to bring out the truth of the allegations. The possibility of the petitioner exerting his influence being a policeman and the alleged threats and tampering with evidence using his position of dominance and power cannot be ignored or brushed aside.

In view of the above, I am of the opinion that this is not a fit case to grant anticipatory bail. The bail application is therefore dismissed.