XXXXXXXXXX vs State Of Kerala

Ziyad Rahman A.A., j

The petitioner is the accused in Crime No.321 of 2023 of Vazhakkad Police Station, which was registered for the offences punishable under Sections 376 and 506 of IPC.

The prosecution case is that on 27.03.2023 at about 4 PM, the petitioner, who is the former husband of the de facto complainant, trespassed into the bedroom of the de facto complainant and committed rape on her. It is also alleged that he had taken nude photographs of the de facto complainant and threatened her that the same would be circulated on Social media. Even though the incident occurred on 27.03.2023 crime was registered on 08.04.2023, and the matter is now under investigation. This application for anticipatory bail is submitted by the petitioner he apprehends arrest in connection with the investigation of the said case.

Heard Sri. Rakesh K., learned counsel for the petitioner, Smt. Seetha S., learned Public Prosecutor for the State. And Sri Dheerendrakrishnan, the learned counsel appearing for the defacto complainant.

The learned counsel for the petitioner submits that a false complaint has been submitted by the de facto complainant. The learned counsel points out the sequence of events which ultimately led to the registration of the crime. It is pointed out that the marriage between the petitioner and the de facto complainant was solemnised on 18.03.2012, and in the said wedlock, a daughter was born in 2016. In 2019, as the de facto complainant started an illicit relationship with another person named Nejeebudheen, certain disputes occurred between them, leading to the termination of their marriage by pronouncing Talaq. An agreement was also entered between the petitioner and the de facto complainant, whereby the de facto complainant was allowed to continue her residence in the rented building taken by the petitioner and permitted to use the vehicle registered in the petitioner's name. It is contended that the person with whom the de facto complainant had a relationship used to visit the said residential building, which was objected to by the petitioner. This ultimately resulted in a scuffle between the petitioner and the said Nejeebudheen, consequent to which Vazhakkad Police Station registered Crime No.273 of 2023 against the said Nejeebudheen and an investigation is in progress. Similarly, the de facto complainant clandestinely sold the vehicle which she was using and stood registered in the name of the petitioner by creating false documents. In connection with the same, the petitioner had already submitted Annexure-B complaint before the police on 11.04.2023. Similarly, the petitioner also submitted a complaint before the Malappuram Vanitha Police Station, against said Najeebudheen on the allegation that he ill-treated his daughter on various occasions, and the said complaint is also now pending. The learned counsel further points out that, as per the terms of the agreement between the petitioner and the defacto complainant, occasional overnight custody of the child was allowed to the petitioner. On one occasion, when the child was given to the custody of the petitioner, the child revealed to him about the harassment meted out to the child at the instance of said Najeebudheen. Therefore the petitioner refused to hand over the child to the de facto complainant as per the terms and conditions of their agreement. This led to filing a petition at the instance of the de facto complaint before the Family Court, Malappuram, for permanent custody of the child by O.P.No.413 of 2023. Along with the said application, I.A.No.2 of 2023 was submitted by her for interim custody of the child, which was granted in favour of the de facto complainant as per Annexure E order passed by the Family Court, subject to the condition that the child shall be accommodated at the residence of her paternal uncle. It was also observed that the defacto complainant should not expose the child to the presence of Najeebudheen. The learned counsel for the petitioner submits that, meanwhile, the present crime was registered with false allegations to ensure that the legitimate rights of the petitioner, as regards the custody of the daughter, are defeated. The learned counsel for the petitioner further submits that the petitioner is ready and willing to cooperate with the investigation and shall abide by any condition that may be imposed by this Court.

The learned counsel for the defacto complainant would oppose the prayer for anticipatory bail. It is pointed out that, in her statement, she made a specific allegation of forceful sexual assault against the petitioner. The learned counsel for the defacto complainant denies the allegation of illicit relationship between her, and the said Najeebudheen. According to her, the said Najeebudheen was the business partner of the petitioner, and the petitioner created a false story to get custody of the child. It is also pointed out that the defacto complainant had already filed WP(Crl) No 436 of 2023 before this court seeking a direction to change the investigating officer, and this court already passed an interim order therein that no final report shall be filed. The dismissal of the application was sought in such circumstances.

The learned Public Prosecutor would point out that the victim's statement, in this case, reveals the commission of the offence, and the matter is now under investigation. However, it was pointed out that, in the statement of the investigating officer, he noticed some contradictions in the statements of the defacto complainant and the child and the same is to be verified. There is some doubt as to the pronouncement of Talaq, as it was revealed during the investigation that, on 10.02.2022, the petitioner pronounced two talaqs, but the same was not ratified in the proper manner, and therefore the marital status of the parties is also to be verified. However, considering the serious nature of the allegations, the learned Public Prosecutor seeks for dismissal of the application.

I have gone through the records and heard the contentions raised from both sides. From the materials placed on record, it is evident that criminal proceedings are pending between the parties in connection with various issues besides the application for custody of the child before the Family Court. As against Najeebudheen, who is alleged to have a relationship with the de facto complainant, there is one case, and as against the de facto complainant also, a complaint has been submitted by the petitioner, alleging the forgery for creating documents for the transfer of the vehicle stood registered in the name of the petitioner. Custody of the child is also under serious dispute. The petitioner's specific case is that the defacto complainant is having an illicit relationship with Najeebudheen, and several photographs and chats between them were produced to substantiate the same. From the examination of the same it can be seen that, to some extent, those would show that they have a close relationship. In Annexure E order of the Family Court also, this aspect was considered and a specific condition was imposed while granting custody of the child to the defacto complainant that she shall not expose the child to the said Najeebudheen. Moreover, the complaint alleging rape was submitted by the defacto complainant after the petitioner submitted various complaints against the defacto complainant and the said Najeebudheen. Thus, when the sequence of events referred to above is considered, the contentions put forward by the learned counsel for the petitioner cannot be simply brushed aside in this case. It is also to be noted in this regard that even though the incident allegedly occurred on 27.03.2023, the crime was registered on 18.04.2023. Of course, the delay of that extent may not be relevant under normal circumstances as far as a sexual offence is concerned, but in the peculiar facts and circumstances of the case and also on account of the strained relationship between the parties, the delay cannot be ignored, at least for the purpose of deciding the question of bail. It is also to be noted in this regard that even at the time when the aforesaid FIR was registered, and the offence was allegedly committed, certain disputes were pending between the parties. Criminal cases were also registered against the said Najeemudheen at the instance of the petitioner. Besides the same, in the report of the investigating officer, it is stated that there are some contradictions in the statements of the defacto complainant and their child. The doubts with regard to the marital status of the parties, as pointed out in the statement of the investigating officer, is also yet another aspect which needs to be taken note of. When all the above elements are taken into consideration, I am of the view that it may not be proper to deny anticipatory bail to the petitioner. However, in the light of the allegations, a detailed investigation is necessary, for which the cooperation of the petitioner is absolutely necessary. While taking this view, I have taken into consideration various litigations pending between the parties, including the criminal cases as well as the hotly contested litigation before the Family Court for the custody of the child. In such circumstances, I deem it appropriate to dispose of this bail application with the following conditions:

(i) The petitioner shall surrender before the Investigating officer, within a period of two weeks from today, for subjecting himself to interrogation.

(ii) After interrogation, the petitioner shall be released on bail on the very same day of surrender upon the petitioner executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the investigating officer

(iii) The petitioner shall fully cooperate with the investigation, including subjecting himself to the deemed police custody for the purpose of recovery, if any, as and when demanded.

(iv) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m. every Monday until the filing of the final report.

(v) The petitioner shall also appear before the investigating officer as and when required.

(vi) The petitioner shall not commit any offence of similar nature while on bail.

(vii) The petitioner shall not make any attempt to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(viii) The petitioner shall not leave the State of Kerala without the permission of the trial Court.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law.