Jithin John vs State Of Kerala

Ziyad Rahman A.A., J

This is an application filed under Section 439 of the Code of Criminal Procedure seeking regular bail.

The petitioner is the accused in Crime No.581/2023 of Ezhukone Police Station which was registered for the offences punishable under Sections 376(2)(n) and 323 of the Indian Penal Code(IPC) and also under Section 67A of the Information Technology Act (IT Act).

The prosecution case is as follows: The petitioner, with the intention to sexually abuse the defacto complainant, made a false promise of marriage and called her to a place at Thaligo in Goa on 31.07.2022 and thereafter committed forceful sexual intercourse during the period from 31.07.2022 to 20.09.2022 at Goa. It is also alleged that when she opposed, the accused caused hurt to her. The accused allegedly taken her nude photographs and threatened her that the photographs would be published. The crime was registered in such circumstances and as part of the investigation, the petitioner was arrested on 21.04.2023. Since then, he has been under judicial detention. This application for regular bail is submitted in such circumstances.

Heard Sri.K.V.Anil Kumar, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, learned Senior Public Prosecutor for the State.

Learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. According to him, the petitioner and the defacto complainant were known to each other for a long period, and the allegation of forceful sexual intercourse is incorrect. It is also pointed out that, the sexual relationship between the parties was on the basis of mutual consent and the present complaint happened to be submitted because of certain differences of opinion between them.

On the other hand, the learned Public Prosecutor would oppose the aforesaid application by pointing out that there are specific allegations against the petitioner. The matter is under investigation and therefore dismissal of the application is sought.

I have gone through the records. The specific case of the petitioner is that the sexual relationship is consensual. The statement of the victim is to the effect that, she was called to Goa by the petitioner, by making a false promise of marriage. It is evident from the records that the defacto complainant herself went to Goa to meet the petitioner herein. The period of sexual assault is between 31.07.2022 to 20.09.2022 and the duration gives some indications of a relationship based on mutual consent. The parties are mature and capable of understanding the consequences of their actions. Moreover the FIR was registered only during April,2023, which is after more than seven months of the incident. When taking into account all the aforesaid aspects, the contention put forward by the learned counsel for the petitioner with regard to the consensual sexual relationship cannot be simply brushed aside. However, now the matter is under investigation and it is not proper for this Court to consider the said aspect at this stage. In such circumstances, taking into account the aforesaid aspects, and the period of detention the petitioner had already undergone, I am of the view that, the bail can be granted to the petitioner subject to appropriate conditions to ensure that he is not influencing the victim or the witnesses.

In such circumstances, this bail application is allowed and the petitioner is directed to be released on bail subject to the following conditions:-

i) The petitioner shall be released on bail on executing a bond for Rs.1,00,000/-(Rupees One Lakh only) with two solvent sureties for the like sum each to the satisfaction of the jurisdictional Court.

ii) The petitioner shall fully cooperate with the investigation.

iii) The petitioner shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m every Wednesday until the filing of the final report.

iv) The petitioner shall also appear before the Investigating Officer as and when required by him.

v) The petitioner shall not commit any offence of similar nature while on bail.

vi) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

vii) The petitioner shall not leave the State of Kerala without the permission of the trial Court.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with law.