Sudhakara vs State Of Kerala

Dr. Kauser Edappagath, J

This application is filed under Section 482 of the Bharatiya Nagarik  Suraksha  Sanhita,  2023  (for  short,  BNSS),  seeking  pre-arrest bail.

The applicant is the accused in Crime No.1/2026 of Kasaragod Vanitha Police Station, Kasaragod District. The offences alleged are punishable under Sections 376(2)(n) and 506 of the Indian Penal Code, 1860.

The prosecution case, in short, is that the applicant had committed penetrative sexual assault on the survivor, a resident of Kidoor  in  Kidoor  Village,  during  1995  in  the  room  near  ASBS  School, Ichilampady,  and  in  2023  from  June  to  October,  in  a lodge  at  Bekal, situated on the upstairs of KVR show room, also threatened to kill her and family and thereby committed the offences.

I have heard Sri.S.Rajeev, the learned counsel for the applicant,  Smt.Sruthy  N.  Bhat,  the  learned  counsel  for  the  additional respondent No.3 and Sri.M.C.Ashi, the learned Senior Public Prosecutor. Perused the case diary.

The learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the above crime.  The  counsel  further  submitted  that  no  materials  are  on  record to  connect  the  applicant  with  the  alleged  crime;  hence,  he  is  entitled to bail. The learned Senior Public Prosecutor, on the other hand, submitted that the alleged incident occurred as part of the applicant's intentional  criminal  acts,  and  if  he  is  released  on  bail  at  this  stage,  it will affect the course of the investigation.

The  applicant  is  aged  55  years  and  the  victim  is  aged  48 years.  A reading  of  the  FI  Statement  shows  that  the  victim  and  the applicant met each other in the year 1995 and they were in a relationship. According to the victim, the first instance of sexual act took place in the year 1996 while she was 19 years old. Admittedly, it was consensual. According to her, the applicant promised to marry her and she gave consent. Thereafter, the victim married in the year 1997 and two children were born in the said wedlock. The applicant also married and children were born in the said wedlock. The victim divorced her first husband in the year 2007 and she contracted a second marriage in the year 2017. According to the victim, the subsequent instances of sexual relationship between her and the applicant  took  place  in  the  year  2023.  A reading  of  the  FI  Statement shows  that  those  were  also  consensual  in  nature.  It  appears  that  she had  sexual  relationship  with  the  applicant  while  she  was  married  and the  marriage  was  subsisting.  The  sequence  of  events  narrated  in  the FI Statement would show that right from the year 1995 till 2023 even prior to her marriage and thereafter, the victim was in physical relationship with the applicant and they had consensual sexual intercourse several times. Considering all these aspects, I feel that this is a fit case where pre-arrest bail can be granted to the applicant.

The victim had also stated in her FI Statement that the applicant had videographed her nude videos on his mobile phone and he has threatened that he would circulate the same through social media and YouTube. The learned counsel for the victim submitted that the mobile phone used by the applicant for recording the nude videos of the victim has to be recovered and examined, and for the said purpose, the custodial interrogation of the applicant is necessary.

In Sushila Aggarwal and Others v. State (NCT of Delhi) and Another, [(2020) 5 SCC 1] , it was held by the Supreme Court  that  “limited  custody”  or  “deemed  custody”  would  be  sufficient in  appropriate  cases  to facilitate  the  requirements  of  the  investigating authority, including for fulfilling the provisions of Section 27 of the Evidence  Act.  Therefore,  the  applicant  can  be  directed  to  produce  his mobile phone before the investigating officer. The prosecution has not been able to convince this court that custodial interrogation is necessary for any other purpose.

On  consideration  of  the  above-mentioned  circumstances,  I am of the view that the applicant ought to be given the benefit of pre- arrest bail, subject to the condition of limited custody to the investigating  officer  as  contemplated  in  the  decision  of  the  Supreme Court in Sushila Aggarwal (supra).

Accordingly, the bail application is allowed on the following conditions:

(i) The applicant shall appear before the investigating officer on 23/03/2026 at 10:00 a.m. for interrogation.

(ii) He shall surrender his mobile phone/s before the investigating officer on that day.

(iii) The  applicant  can  be  interrogated  for  the  next  three  days from 10.00 a.m to 4.00 p.m. every day, if required, after giving adequate intervals.

(iv) The applicant shall be deemed to be under custody during the  aforesaid  period  for  facilitating  the  requirements  of  investigation, including to undergo medical examination or potency test.

(v) If  the  investigating  officer  intends  to  arrest  the  applicant, then he shall be released on bail on executing a bond for Rs.1,00,000/-  (Rupees  One  lakh  only)  with  two  solvent  sureties  each for the like sum each before the investigating officer.

(vi) The applicant shall fully cooperate with the investigation.

(vii) The  applicant  shall  appear  before  the  investigating  officer between 10.00 a.m. and 11.00 a.m. every Second Saturday until further orders. He shall also appear before the investigating officer as and when required.

(viii) The applicant shall not commit any offence of a like nature while on bail.

(ix) The applicant shall not attempt to contact the victim or 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.

(x) The applicant shall not leave the State of Kerala without the permission of the trial Court.

(xi) The applicant shall surrender his passport, if any, before the investigating officer.

(xii) The application, if any, for deletion/modification of bail conditions  or  cancellation  of  bail  on  the  grounds  of  violating  the  bail conditions shall be filed at the jurisdictional trial court.