Mohammed Harees vs State Of Kerala

Bechu Kurian Thomas, J

Petitioners are the accused in Crime No.159 of 2022 of Alappuzha North Police Station registered for the offences under sections 376(2)(n), 354, 420 and 506 r/w section 34 of the Indian Penal Code, 1860. They seek pre-arrest bail under section 438 of the Code of Criminal Procedure, 1973.

Petitioners are husband and wife. Both of them are facing indictment for the offences which include rape of a 24-year-old survivor.

The prosecution alleges that during the period from 17.03.2021 to 31.12.2021, the first petitioner, after impressing the survivor that he is a divorcee and promising to marry her, committed rape at a resort in Alappuzha on 17.03.2021 and continued to exploit her sexually. The prosecution alleges that from June 2021 onwards, after offering partnership in the business of a tourist resort by the name of ‘Caffe Mandala’, first petitioner induced her to transfer an amount of Rs.18,00,000/- apart from gold worth Rs.2,00,000/-, and thus committed criminal breach of trust also. The prosecution further alleges that, subsequently, on 02.01.2022, on coming to know about the involvement of the first accused in a criminal case, the defacto complaint became aware about the subsisting marriage of the petitioners and also that the amount given by the defacto complainant was transferred to the account of the petitioners and on questioning the same with the second petitioner, she threatened her, stating that the photographs in the possession of the first petitioner will be misused and that the petitioners had jointly acted to trap the defacto complainant and thereby the petitioners made an unlawful gain of Rs.20,00,000/- and unlawful loss to the defacto complainant and thus committed the offences alleged.

Sri. Anil K.Muhammed, learned counsel for the petitioners contended that the entire prosecution case is built upon a false premise and that the falsity in the survivor's allegation can be understood from Annexure-II statement given by her to the police as well as Annexure-VI agreement entered into between the 1st petitioner and the survivor. According to the learned counsel for the petitioners, the aforementioned two documents will indicate that the attempt of the survivor is to exploit and obtain undue financial benefit out of false allegations. It was submitted that the court ought not to give its seal of approval to such illegal attempts of persons masquerading as victims.

Sri.K.A.Noushad, learned Public Prosecutor objected to the grant of pre-arrest bail and submitted that very serious allegations have been levelled against the petitioners which require custodial interrogation. It was further pointed out that the repeated acts of rape and the cheating alleged to have been committed by the petitioners could be investigated properly, only if custodial interrogation is carried out. It was also pointed out that the first petitioner is an accused in a crime alleging commission of various offences under the penal code including section 326 of the IPC.

Smt. Isamol Baby, learned counsel appearing on behalf of the survivor-second respondent argued that the survivor had been subjected to repeated sexual intercourse with the promise of marriage after convincing her that the first petitioner was a divorcee. It was further pointed out that the survivor came to know about the subsisting marriage of the first petitioner only when Crime No.29 of 2022 of Alappuzha South Police Station was registered by the brother of the first petitioner [copy of which is produced as Annexure R2(1)] indicating that the first petitioner has a subsisting marriage with a foreign lady. The learned counsel further contended that the first petitioner has been indulging in several illegal activities and exploiting persons, especially ladies at the resort owned by him and though complaints were understood to have been filed, the same were all either closed or withdrawn using the first petitioner’s influence. The learned Counsel contended that the statement allegedly given to the police was manipulated by the first petitioner and the same is not the reality. It was also submitted that on 25.05.2022 the first petitioner manipulated records in such a way to make it appear that amounts have been transferred to the survivor, which were nothing but his machination. Learned counsel also submitted that due to the sexual and financial exploitation committed by the petitioners, the survivor has fallen into total despair and also that grant of pre-arrest bail would enable the destruction of the remaining evidence.

I have considered the rival contentions raised and have perused the case diary.

The survivor is a young girl of 24 years. She alleges to have been repeatedly exploited both sexually and financially. Though a statement is alleged to have been given before the Police Station as per Annexure-II, stating that she was aware about the subsisting marriage while she indulged in the sexual relationship, there is no mention of the date on which the said statement was given. Despite having allegedly given such a statement, the survivor now asserts that the subsistence of the marriage was not known to her and that the statement was obtained by deceit after the first petitioner pretended to have affectionate feelings for the defacto complainant and even offered to marry her once the case is closed. The statement is allegedly obtained to attempt quashing of the FIR. As held in Gian Singh v. State of Punjab and Another (2012) 10 SCC 303], heinous offences cannot be quashed by settlement. Apart from the above, it is a statement given before a police officer and that too after filing of the FIR. Therefore, the said statement has no binding effect legally and cannot be relied upon for any purpose. In this context, the contention of the learned counsel for the second respondent as well as the learned Public Prosecutor that the statement was manipulated by the first petitioner cannot be ignored.

The allegation regarding the manipulation of the amount paid on 25.05.2022 is also a matter which requires detailed investigation, as pointed out by the learned counsel for the second respondent. The documents produced by the petitioners themselves show certain financial transactions on 25.5.2022 indicating a semblance of possibility in the allegation of the survivor that those transactions were manipulated to indicate that petitioners had paid to the survivor a part of the amounts due to her. The account statement shows that first petitioner had taken a loan from a finance company on 25-05-2022 and paid the petitioner the amount by cash cheque and on the same day the amount was credited back into the first petitioner’s account and the loan to the finance company also repaid on the same day. These transactions create doubt in the mind of the Court as being a clever attempt to hoodwink others. Anyway these are all matters that require interrogation.

Apart from the above, the first petitioner has a criminal antecedent in the form of Crime No. 29/2022 alleging offences under sections 452, 326, 323, and 324 read with section 34 of the IPC. So there is a chance that he may flee the Country also.

Having regard to the above circumstances, I am of the view that this is not a fit case where the first petitioner can be given the benefit of pre-arrest bail.

However, as regards the second petitioner, the allegation in the FIR is that she had threatened the defacto complainant that the first petitioner will misuse her photographs and that all the alleged acts were done by them together. Taking note of the aforesaid allegations, I am of the view that second petitioner can be granted pre-arrest bail however subject to conditions:

Accordingly, the bail application of the second petitioner is allowed on the following conditions:

(i) The second petitioner shall appear before the Investigating Officer on 08.07.2022 and shall subject herself to interrogation.

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

(iii) The second petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation.

(iv) The  second  petitioner  shall  not  intimidate  or attempt to influence the witnesses; nor shall she tamper with the evidence or contact the victim or her family members;

(v) The second petitioner shall not commit any offence while she is on bail.

(vi) The second 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.

Thus, the bail application of the first petitioner is dismissed while that of the second petitioner is allowed subject to conditions.