IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 4544 of 2010()
1. RAJESH, PALOLIL HOUSE, MULLARINGADU KARA
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. CIRCLE INSPECTOR OF POLICE MUNNAR.
For Petitioner :SRI.C.K.VIDYASAGAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :16/08/2010
O R D E R
K.HEMA, J
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B.A No.4544 OF 2010
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Dated this the 16th day of August 2010
ORDER
This petition is for anticipatory bail.
2. The alleged offence is under Section 376 of I.P.C
According to prosecution, petitioner committed rape on de facto
complainant at different places on the promise to marry her.
3 Learned counsel for petitioner submitted that as per the
allegations in the FIS, petitioner and de facto complainant were in
love with each other and they had gone to Adimali and Munnar and
stayed in lodges and had sexual relationship. It is further alleged
that it is on the promise to marry that the sexual act is committed.
De facto complainant is aged 28 years and she is a working woman.
She is working as a Dental Assistant at Ernakulam.
4. According to learned counsel for petitioner, de facto
complainant knows the consequences of the acts committed and
the allegations made that he promised to marry her and that is a
reason why she had consented etc. are difficult to be swallowed, in
the light of the decision rendered by the Hon’ble Supreme Court
and reported in Dileep Singh v State of Bihar 2005(1) SCC
Page 88, Even if the entire allegations are accepted, those will
B.A No.4544 OF 2010 2
not constitute offence under Section 376 IPC, it is submitted.
The only inference that can be drawn on the facts is that she
had consented to the sexual relationship and hence no rape is
involved, it is submitted.
5. This petition is strongly opposed. Learned Public
Prosecutor submitted that as per the allegations made in the
FIS, this is a case of rape. The consent is vitiated by a false
promise to marry. It is also submitted that petitioner is required
for custodial interrogation and hence, this is not a fit case to
grant anticipatory bail.
6. On hearing both sides, I am satisfied that petitioner will
be required for conducting potency test and his interrogation
also will be needed for an effective investigation. Hence, it is not
fit to grant anticipatory bail. The petitioner may surrender
before the investigating officer or the court concerned and move
for regular bail. Regarding the merit of the contention regarding
consent, I am not making any observation, since it is likely to
prejudice the lower court while considering application for
regular bail.
7. Learned counsel for petitioner submitted that the court
concerned may be directed to consider the bail application on
B.A No.4544 OF 2010 3
merit. It is needless to say that when an application for bail is
filed, the court concerned is bound to consider the same on
merit and state reasons for rejecting the contentions raised.
With the above observations, this petition is dismissed.
K.HEMA JUDGE
vdv