JAMALUDHEEN.K.V, S/O.ABDUL KHADER Vs STATE OF KERALA

This petition is filed under Section 438 of the Code of Criminal Procedure.

The petitioner herein is the accused in Crime No.686 of 2017 of Dharmadam Police Station, registered alleging offence punishable under

Sections 376(2)(n) of the IPC.

The de facto complainant was earlier married to one Sidhique and when their marriage was in doldrums, she got acquainted with the petitioner

who is a distant relative of her husband. The petitioner was working abroad then. In the month of August 2017, the petitioner returned from Gulf.

During that period, the victim was staying with her sister in a rented house. They used to keep in constant touch. On 13.09.2017, the victim was

called up by the petitioner herein and informed that he would come to visit her. He gave her ring and after assuring her that he would marry her

subjected her to sexual intercourse. This was repeated on yet another occasion. Later, discussions were held by the family members and it was

decided that ''Nikah'' can be held on 06.10.2017. However, neither the petitioner nor her relatives came to the mosque on that day. Aggrieved,

the information was furnished on 02.11.2017 based on which the crime was registered.

The learned counsel appearing for the petitioner submitted that the allegations are untrue. According to the learned counsel, the victim is a

married lady who is much older to the petitioner herein. Referring to the decision of the Hon''ble Supreme Court in Uday v. State of Karnataka

[(2003) 4 SCC 46], it is submitted that the allegations levelled will not attract the offence of rape. The relationship between the petitioner as well as

the victim who is ten years older to the petitioner was purely consensual. At any rate, according to the learned counsel, the petitioner is a person

having permanent roots in the society and there cannot be any apprehension that he would make himself scarce. He is prepared to join the

investigation and prays that his custodial interrogation be dispensed with.

The learned Public Prosecutor has opposed the prayer. It is submitted that the materials in the case diary reveals that the petitioner herein had

persuaded the victim to have sexual intercourse with him by securing her consent by fraud. After exploiting the de facto complainant on repeated

occasions the petitioner has reneged from his promise and refused to marry the victim. It is further submitted that the allegations are such that

custodial interrogation of the petitioner cannot be dispensed with.

I have considered the submissions advanced and have gone through the case diary.

The materials reveal that the victim was divorced by her former husband and thereafter, she got acquainted with the petitioner. The petitioner is

much younger to the de facto complainant. It is evident that a negotiation was held between the family members of both the parties. However, the

relatives of the petitioner was not agreeable as the victim was earlier married. It was thereafter, that the victim has come forward with a complaint

of rape. There is a clear distinction between rape and a consensual act and in a case like this, this Court will have to carefully examine whether a

promise has been made to satisfy his lust or whether the consent involved was given after wholly understanding the nature and consequences of

sexual indulgence. It is by now settled that the acknowledged consensual physical relationship between two willing adults would not constitute an

offence under Section 376 of the IPC, especially, when the victim was a major on the date of occurrence. A deeper probe into the allegation is not

warranted at this stage. Taking note of the age, and antecedents of the victim it appears that she was having the capacity to understand the

consequences of a decision to have sexual intercourse with the petitioner herein. The contention of the learned counsel that he has been roped in

cannot be brushed aside at this stage. I find no reason to direct the petitioner to be confined prior to his enlargement on bail. He is not a person

with criminal antecedents and there cannot be any apprehension that he would evade from the process of law.

In the result, this petition will stand allowed. However, it shall be subject to the following conditions:

i). The petitioner shall appear before the investigation officer within ten days from today and shall undergo interrogation. Thereafter, if he is

proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.40,000/- (Rupees forty thousand only) with two

solvent sureties each for the like sum.

ii) The petitioner shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11

a.m., for one month or till final report is filed, whichever is earlier. He shall make himself available for any medical test that he may have to be

subjected to.

Iii) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as

to dissuade him/ her from disclosing such facts to the court or to any police officer. The petitioner shall not make any attempt to contact the victim

or her family members.

iv) The petitioner shall not commit any similar offence while on bail.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any,

and pass appropriate orders in accordance with the law.