Martin Sebastian vs State Of Kerala

Bechu Kurian Thomas, J

Initially, petitioner apprehended arrest in an unknown crime. Subsequently, it has been informed by the learned Special Public Prosecutor that the petitioner is the accused in Crime No.1734 of 2022 of the Ernakulam Central Police Station. Thereafter the petitioner produced the FIR in the said crime and urged for the grant of anticipatory bail.

Prosecution alleges that the accused had, after promising to provide opportunities in movies and on the promise of marriage, took the defacto complainant/victim to various places like Juhu in Mumbai Thrissur and Bangalore and sexually exploited the victim from October, 2000 onwards. The accused also cheated the victim of Rs.78,60,000/- and 80 sovereigns of gold and on 20.08.2022, mentally assaulted her inside the car parked in the office of his Advocate and also threatened to kill her using quotation gangs and his political connections and thereby committed the offences alleged.

Smt.Bimala Baby, learned counsel for the petitioner, contended that the prosecution allegations are totally concocted for the purpose of compelling the petitioner to pay a large amount of money to the victim. It was argued that the petitioner and the victim had been in close acquaintance for the last 23 years and that she was made the Director of eight of the companies started by the petitioner. Learned counsel asserted that the victim is being used as a tool by his other business partners due to rivalry, inter-se the partners. It was further contended that the alleged sexual relationship on the basis of a promise of marriage is wholly false since the victim herself is aware of the subsisting marriage of the petitioner. Therefore the sexual relationship, if any, between the petitioner and the victim can only be termed to be a consensual relationship. According to the learned counsel, the allegation of cheating of Rs.78.60 lakhs and 80 sovereigns of gold are totally baseless, and on the other hand, several lakhs of rupees had been paid by the petitioner to the victim in the last 22 years of their acquaintance, including Rs.40/- lakhs towards the treatment of her father. It was also pointed out that the victim has an eye on a large extent of property purchased by the petitioner near her house for starting a Mall, and the complaint has been instigated and initiated to compel the petitioner to yield to her illegal demands. Learned counsel finally submitted that petitioner is willing to surrender his two mobile phones, which would clearly indicate the various communications exchanged between them and also the details regarding the banking transactions and would prove the falsity of the prosecution allegations. According to the learned counsel, due to the clout of influence wielded by the victim through the other partners in the business, the victim attempts to harm the reputation and goodwill of the petitioner. It was also submitted that petitioner is willing to abide by any conditions that may be imposed.

Sri.P.Sanjay, learned counsel on the other hand, submitted that the victim was being exploited from the age of 15, and he groomed her as a sexual predator taking advantage of her immaturity. Petitioner is alleged to have implanted himself into a circle of trust and coerced her into yielding to his sexual and physical desires. Referring to the condition called Stockholm Syndrome, learned counsel submitted that petitioner garnered her sympathy, trust and consent for sexual intercourse by portraying himself to be a divorcee, and after gaining her trust, with the promise of marriage, used her as a slave. It was argued that he forced her to give in to his deviant sexual desires and indulged in unnatural sex, and physical torture. Petitioner also financially exploited the victim and kept her permanently bonded. Learned counsel further submitted that the promise of marriage was repeatedly asserted and even made the victim believe such a promise by exchange of rings after taking her to a Church, and the victim genuinely believed that the petitioner was initially awaiting divorce from the authorities and that he was a divorcee.

Smt.Ambikadevi learned Special Public Prosecutor also opposed the application for bail and submitted that custodial interrogation is essential for more reasons than one. According to the learned Special Public Prosecutor, the instant case is not one of rape alone but a peculiar instance of exploiting the trust and misusing the trust for sexual and financial exploitation. She submitted that petitioner is a man of influence who had kept the victim to himself for 20 years and more, and therefore custodial interrogation alone can unravel the truth of the allegations. The decisions in Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria [(1998) 1 SCC 52] and State rep. by the C.B.I. v. Anil Sharma (1997) 7 SCC 187 were relied upon to drive home the contention that the quality of custodial interrogation is different during the course of investigation from the interrogation when the petitioner is armed with an order of anticipatory bail. Learned Special Public Prosecutor also referred to the decision in Ramachandran @ Chandran v. State of Kerala and Another (2022 (3) KHC 81) and Vijay Babu v. State of Kerala and Others (2022 (4) KHC 332) and contended that the application for bail ought to be dismissed.

I have considered the rival contentions and have perused the documents produced by the petitioner as well as the second respondent.

Ann.6 is the FIR in Crime No.1734 of 2022 of the Ernakulam Central Police Station. The complaint filed by the victim dated 29.11.2022 is produced along with it. The same complaint is produced by the second respondent also, as Ann.R2(e).

The victim is stated to be a 37 year old unmarried lady. She alleges in her complaint that she had been subjected to sexual assault for the last almost 20 years and was forced to indulge in physical relationship after procuring her consent through a false promise of marriage. A careful reading of the complaint reveals that from the year 2000 till 2010, there is no allegation of any penetrative sexual assault alleged against the petitioner. The allegation, as seen from the complaint, is that in the year 2000, when the victim was only 15 years old, the accused had, while guiding her in her acting for a movie, groped her. Thereafter he is alleged to have apologised to her and maintained a cordial relationship, not only with the victim but also with her entire family and even obtained her trust and respect.

The complaint further reveals that the first instance of alleged physical relationship is purported to have occurred in the year 2010 and thereafter, they continued the relationship till 2022. Even though the victim alleges that the physical relationship between them was always rape, there is no allegation that any complaint was raised by the victim against the petitioner for the last 12 years. The complaint also mentions that they have lived as husband and wife, whenever the accused used to visit Mumbai. According to the victim, though initially, the accused had mentioned that his divorce proceedings are continuing and he would marry her after he obtains the order, subsequently, accused is alleged to have taken her to a church at Mahi and exchanged rings and promised to take care of her till her death and told her to live as his wife.

On a perusal of the documents produced, it is noticed that the victim and even her sister were Directors in several companies started by the petitioner and she had even transferred her shares to the petitioner’s wife. The complaint itself mentions that in the year 2016, the victim had met one of the petitioner’s sons in Bangalore and that he questioned the victim about her relationship with his father. It is also noticed from the WhatsApp chats produced as Ann.10, the veracity of which was not seriously disputed by the victim, that though petitioner and the victim maintained a relationship as husband and wife, unknown to the petitioner’s actual wife, she had been made to look like a clown in front of his wife and children. It is also stated in the WhatsApp chats that the defacto complainant had maintained silence all along (about their relationship) due to her good quality.

The prima facie conclusion that can be arrived at from the complaint and the documents apart from the submissions made across the Bar is that the petitioner and the victim had been in a relationship for a considerably long period of time. Physical relationship was also maintained between them, from the year 2010. Their relationship also involved property and financial transactions, and both were intimately involved with each other. Though the victim alleges in her complaint that petitioner had always promised to marry her, there is no allegation that petitioner had ever shown the victim his divorce order allegedly obtained by him. The above factor prima facie raises some doubt, especially since a mature lady, like the victim, allegedly continued to indulge in a physical relationship with the petitioner for 12 long years on an assumption that the petitioner had already divorced his wife. The incident of 2016 when petitioner's son allegedly questioned the victim about her relationship with his father and the transfer of her shares to petitioner's wife are also instances which are prima facie indicative of knowledge of petitioner’s subsisting marriage.

In this context, it is relevant to refer to the decision in Deepak Gulati v. State of Haryana [(2013) 7 SCC 675], wherein the Supreme Court had clearly brought out the distinction between a breach of promise and a false promise. Similarly, in the decision in Dr. Dhruvaram Muralidhar Sonar v. State of Maharashtra and Ors. [(2019) 18 SCC 191] and in Sonu @ Subhash Kumar v. State of Uttar Pradesh [AIR 2021 SC 1405], the Supreme Court had delineated the principles as to when consent procured by a promise of marriage will amount to rape. Unless consent for a sexual relationship is obtained by a fraudulent promise of marriage, the physical relationship between a man and a woman will not amount to rape merely because they intended to get married to each other, which did not fructify later. It has been further observed by the Supreme Court that when there is a subsisting marriage, the promise to marry cannot be said to have been believed by the other person to amount to rape.

Further, in the decision in Shivashankar alias Shiva v. State of Karnataka and Another [(2019) 18 SCC 204], the Supreme Court had observed that “It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as “rape” especially in the face of the complainant’s own allegation that they lived together as man and wife.” The above observations are relevant in the peculiar circumstances of the present case. The victim itself states in her complaint that whenever petitioner was in Mumbai, they lived together as husband and wife. Their physical relationship spans over a long period of 12 years. Thus the long and continuous physical relationship prima facie compels this Court to assume the possibility of a consensual relationship.

There is also nothing to indicate that the accused will flee from justice or that he will interfere with the investigation. He has also offered to surrender all his mobiles phones to the investigating officer and any other conditions that may be imposed upon him. These factors also weigh with the court while considering this application.

Though the learned Special Public Prosecutor had vehemently contended, relying upon the decisions in Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria [(1998) 1 SCC 52], State rep. by the C.B.I. v. Anil Sharma [(1997) 7 SCC 187], Ramachandran @ Chandran v. State of Kerala and Another (2022 (3) KHC 81) and Vijay Babu v. State of Kerala and Others (2022 (4) KHC 332) that custodial interrogation is qualitatively different from interrogation under the protection of an order of anticipatory bail, I am of the view that the circumstances in those cases were all different. In Anil Sharma's case, the accused was the son of a Minister of the Union Cabinet, and an MLA, while in Arun Kumar Bajoria's case the allegations related to FERA violation.

Since petitioner’s subsisting marriage could have been easily known to the victim, considering the nature of their long relationship and the facts required to be elicited, apart from the various circumstances mentioned in this order, I am of the view that custodial interrogation of the petitioner is not essential.

In the Constitution Bench judgements of the Supreme Court in Sushila Aggarwal and Others v. State (NCT of Delhi) and Another [(2020) 5 SCC 1] and Shri.Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565] observed that limited custody can be granted to the police while granting anticipatory bail, which would not detract from the power of the police to collect evidence.

Thus, on an appreciation of the contentions raised and the documents produced, I am of the view that limited custody of the petitioner for four days from 9.00 am to 6.00 pm would satisfy the requirements of investigation.

Accordingly, I allow this application on the following conditions:

(a) Petitioner shall appear before the Investigating Officer on 31.01.2023, 01.02.2023, 02.02.2023 and 03.02.2023 and shall subject himself to interrogation from 9 am to 6 pm. Petitioner shall also surrender his mobile phones to the investigating officer without delay at any rate on the date of first appearance itself.

(b) If during interrogation, the Investigating Officer proposes to arrest the petitioner, then, he shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum before the Investigating Officer.

(c) Petitioner shall appear before the Investigating Officer apart from the days mentioned above, as and when required and shall also co-operate with the investigation.

(d) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim or her family members.

(e) Petitioner shall not commit any similar offences while he is on bail.

(f) Petitioner shall not leave India without the permission of the Court having jurisdiction.

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, notwithstanding the bail having been granted by this Court.