XXX vs State Of Kerala

Dr Kauser Edappagath, J

This application is filed u/s 438 of the Code of Criminal Procedure seeking pre-arrest bail.

The applicant is the accused in Crime No.81/2023 of Mannanthala Police Station. The offences alleged are punishable under Sections 376(2)(l) and 376(2)(n) of IPC.

The prosecution case, in short, is that the applicant committed rape on the victim on several occasions in the month of December, 2022 and January, 2023 at her house without her consent and thereby committed the above said offences.

I have heard Sri.R.T.Pradeep, the learned counsel for the applicant and Smt.Maya M.N., the learned 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 present case. The counsel further submitted that no materials are on record to connect the applicant with the alleged crime; hence, he is entitled to get bail. The learned Public Prosecutor, on the other hand, submitted that the alleged incident occurred as a part of the intentional criminal acts of the applicant, and if he is released on bail at this stage, it will affect the course of the investigation.

The victim is a married woman and she is having two children. The applicant is also a married man. The applicant is the friend of the husband of the victim. The husband of the victim was abroad. The victim was residing in an apartment. The applicant was also having another apartment in the same flat complex. Admittedly the applicant and the victim used to meet. According to the applicant, the first incident of sexual assault took place at the end of December, 2022 at her house. In the FIS, it is alleged that the said sexual assault was done by the applicant without her consent. However, she states that after the said incident, they used to talk over phone and they fell in love. Thereafter, in January, 2023, they had sexual intercourse for 2 to 3 times. It is further alleged that the applicant gave a promise of marriage to her. But it is pertinent to note that such a marriage was not at all possible in view of the fact that the applicant and the victim were already married and both of them knew the said fact. On a reading of FIS, it is seen that the wife of the applicant came to know of the relationship between the applicant and the victim, and the wife of the applicant and her relatives went to the house of the victim on 31.01.2023 and scolded her. Again, thereafter on 01.02.2023 also, the wife of the applicant and her relatives went to the house of the victim and scolded her. It was thereafter, the complaint was filed and consequently FIR was registered. On a reading of the entire FIS, it can be seen that both the applicant and the victim were married, they fell in love and had consensual sex. It appears that their relationship strained when the wife of the applicant came to know about their relationship. It was thereafter, the complaint was filed. Considering the allegations levelled against the applicant, his custodial interrogation does not appear to be necessary. For these reasons, it is a fit case where pre-arrest bail can be granted to the applicant.

In the result, the application is allowed on the following conditions:-

(i) The applicant shall be released on bail in the event of his arrest 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 arresting officer/investigating officer, as the case may be.

(ii) The applicant shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for discovery, if any, as and when demanded.

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

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

(v) The applicant shall not 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.

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

(vii) 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 court.