Judicial Analysis Court Copy Headnote Facts Arguments Court observation

KERALA HIGH COURT
Bechu Kurian Thomas, J.
Navaneeth N. Nath – Petitioner
versus
State of Kerala Represented
by Public Prosecutor and Ors. – Respondents
Bail Appl. No.5164 of 2022
Decided on 8.7.2022

Counsel for the Parties:
For the Petitioner:Sri. C.P. Udayabhanu, Sri. M. Ramesh Chander (Sr.), Sri. Rassal Janardhanan A., Sri. Abhishek M. Kunnathu, Sri. P.R. Ajay, Sri. P.U. Pratheesh Kumar and Sri. Boban Palat, Advocates
For the Respondents:Sri. Noushad K.A., Public Prosecutor, Sri. V. John Sebastian Ralph, Sri. Ralph Reti John, Sri. Vishnu Chandran, Sri. Appu Babu, Smt. Shifna Muhammed Shukkur, Sri. Giridhar Krishna Kumar and Smt. Vishnumaya M.B., Advocates

IMPORTANT POINTS
(1) Rape – Sexual relationship between two willing adult partners will not amount to rape coming within purview of section 376 of IPC, unless consent for sex was obtained by a fraudulent act or misrepresentation.
(2) Rape – In order to convert a physical relationship between a man and a woman into rape due to failure to abide by promise of marriage, it is essential that decision of woman to engage in the sexual act must be based on promise of marriage.
(3) Bail – Parameters that govern grant of bail are different from parameters to be considered during trial.

Headnote:
(A) Indian Penal Code, 1860 – Section 376 – Rape – Sexual relationship between two willing adult partners will not amount to rape coming within purview of section 376 of IPC, unless consent for sex was obtained by a fraudulent act or misrepresentation – Even if a sexual relationship between two willing partners does not culminate in marriage, still same will not amount to rape, in absence of any factor that vitiates consent for sex – Subsequent refusal to marry or a failure to lead relationship into a marriage are not factors that are sufficient to constitute rape even if partners had indulged in a physical relationship – Sexual relationship between a man and a woman can amount to rape only if it was against her will or without her consent or when consent was obtained by force or fraud. (Para 10)
(B) Indian Penal Code, 1860 – Section 376 – Rape – Consent for sex obtained by a promise to marry will amount to rape only when promise was given in bad faith or is vitiated by fraud or was not intended to be adhered to at the time of making it – In order to convert a physical relationship between a man and a woman into rape due to failure to abide by promise of marriage, it is essential that decision of woman to engage in the sexual act must be based on promise of marriage – To establish a false promise, maker of promise should have had no intention to uphold his word at the time of making it and said promise should have induced the woman to submit herself to physical relationship – There must be direct nexus between physical union and promise of marriage. (Para 11)
(C) Criminal Procedure Code, 1973 – Section 439 – Indian Penal Code, 1860 – Sections 376(2)(n) and 313 – Bail application – Parameters that govern grant of bail are different from parameters to be considered during trial – Though offences alleged against petitioner are very serious, still, possibility of him fleeing from justice is remote especially since he is stated to be a Central Government Counsel – Further factors like arguable points on merits of case, absence of criminal antecedents of petitioner, absence of requirement of any further recovery, and fact that investigation is practically completed, all lean in favour of petitioner being released on bail – Continued detention of petitioner is not essential – Bail granted. (Paras 13, 16 and 17)
Result: Bail Application allowed.

ORDER

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

2. Petitioner is the accused in Crime No.711 of 2022 of Ernakulam Central Police Station, alleging offences punishable under section 376(2)(n) and section 313 of the Indian Penal Code, 1860.

3. On 21.06.2022, at around 10.30 pm, the petitioner, a lawyer practising in the High Court of Kerala was arrested on the basis of a statement given by the victim in the above-referred crime. The victim is also an Advocate practising in this Court and she gave her statement to the police from the Intensive Care Unit of a hospital in Ernakulam. She was admitted to the hospital as she had slit her wrist. Based on her statement, the police arrested the petitioner on the same night itself since the allegations revealed the offence of rape.

4. Prosecution alleges that on 21-06-2022, the victim slashed her wrist while she was inside the room where the petitioner and his fiancee were staying and thereafter she was rushed to the hospital from where she gave her statement implicating the petitioner. The crime was registered alleging that petitioner had raped the victim at various places including at a hotel in Ernakulam, at Vagamon and at other places after promising to marry her and thereafter backed out from the promise and decided to marry another lady. The prosecution alleges that on coming to know about the proposed marriage, the victim attempted to commit suicide. The prosecution further alleges that during the course of the investigation it was revealed that the victim was forced to undergo two miscarriages at the instigation of the petitioner and hence section 313 IPC was also incorporated.

5. Sri.M.Ramesh Chander, learned Senior Counsel for the petitioner duly instructed by Adv.C.P.Udayabhanu contended that the prosecution case is built upon a false premise and that even if the entire case is admitted for argument’s sake, still, an offence under section 376 IPC will not be made out. The learned Senior Counsel asserted that the first statement given by the victim reveals only a relationship of love for the past four years along with a consensual sexual relationship. There was never any promise of marriage and the relationship became physical as a natural course, without any promise to marry. It was further argued that even the allegation of aborting her pregnancy twice would not advance the case of the prosecution since the continuance of the relationship even after the first pregnancy itself, is a clear indication that there was never any promise of marriage and on the other hand, the relationship was purely consensual.

6. The Senior Counsel further submitted that though petitioner wanted to marry the victim due to reasons beyond his control, the relationship could not fructify into a marriage. If a relationship does not result in marriage due to objections from family or for other reasons, such conduct cannot convert the physical union into a rape. According to the learned counsel, the statement of the victim given on 21.06.2022 belies the entire prosecution story and the subsequent allegations incorporated by the police are factually and legally not tenable. The learned Senior Counsel submitted that in any event, since the investigation is practically completed, continued detention of the petitioner is not warranted, especially since no further questioning of the petitioner or recovery is required.

7. Sri. M.K.Noushad, the learned Public Prosecutor vehemently objected to the grant of bail and pointed out that the victim had, in her statement given under section 164 of the Cr.P.C specifically dealt with the instances of when and how the crime was committed. It was further submitted that the petitioner had induced the victim into a physical relationship and after promising to marry her, continued the heinous crime for the last four years. It was also pointed out that during the course of the investigation and on the basis