XXXXX vs State Of Kerala

Bechu Kurian Thomas, J

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioner is the sole accused in Crime No.357/2022 of Koodal Police station, Pathanamthitta. The offences alleged against the petitioner are under Section 376(2) of the Indian Penal Code, 1860 .

According to the prosecution, pursuant to an online matrimonial advertisement, the petitioner and the victim’s family decided to conduct their marriage and for that purpose, an engagement ceremony was also conducted on 21.11.2021. Thereafter, petitioner and the victim is alleged to have entered into a physical relationship on several occasions and for reasons best known to the petitioner, he backed out from the marriage later. Thus the act of physical relationship between them became offences punishable under Section 376(2)(n) of the Indian Penal Code.

Sri.K.Rakesh, learned Counsel for the petitioner submitted that an offence of rape is not made out from the allegations. On the other hand, petitioner backed out of the marriage, noticing certain unacceptable traits in the character of the victim. According to the learned Counsel, merely because the petitioner backed out from the proposal for marriage, it cannot mean that the physical union between them, would transform into an offence of rape. In any event it was submitted that since the petitioner has been in detention from 05.07.2022, no purpose will be achieved by continuing the detention any further.

Smt.M.K.Pushpalatha, learned Public Prosecutor vehemently opposed the bail application and submitted that the petitioner is alleged to have committed a serious crime. It was further pointed out that on several days commencing from 13.02.2022, petitioner indulged in a physical relationship with the victim and that the alleged consent was obtained on the basis of the promise to marry and therefore, when the petitioner backed out of the marriage, the promise became a false promise of marriage and their physical relationship was therefore without a valid consent.

On a perusal of the documents and on appreciation of the contentions raised by the respective counsel, it is noticed that an engagement ceremony was performed on 21.11.2021, and thereafter on 03.03.2022, notice of intended marriage was also issued, proposing to conduct marriage of the petitioner with the victim. It is thereafter that the petitioner is alleged to have backed out of the marriage.

Having regard to the circumstances of the case, I am of the view that since the petitioner was arrested on 05.07.2022, the continued detention of petitioner is not required. Accordingly, I allow this bail application.

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

(i) Petitioner 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 to the satisfaction of the court having jurisdiction.

(ii) Petitioner shall appear before the Investigating Officer as and when required;

(iii) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the defacto complainant or her family members or further he shall not attempt to interact with the victim or her friends.

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

(v) 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.