Point of law : Anticipatory Bail - Where the discretion of the Court to grant bail has been exercised on relevant considerations and bail is granted, this Court would normally not interfere with such discretion unless it is found that the discretion itself is exercised on extraneous considerations and/or the relevant factors which need to be taken into account while exercising such discretion are ignored or bypassed.

ORDER :

This Criminal Miscellaneous Case has been filed to set aside the order granting anticipatory bail by the Sessions Court, Ernakulam (for short, ‘the court below’) to the accused in Crime No.83/2022 of Ernakulam Town South Police Station.

2. The petitioner is the de facto complainant and the 2nd respondent is the accused in Crime No.83/2022 of Ernakulam Town South Police Station. The crime was registered against the 2nd respondent based on the statement given by the petitioner on 19/1/2022 to the SI of Police, Ernakulam Town South Police Station u/s 376(1) of IPC.

3. The allegation of the prosecution is that the petitioner and the 2nd respondent came to know each other through a matrimonial website (www.keralachristianmatrimony.com) in the month of April 2020. Thereafter, in the month of August 2020, when the petitioner visited Kerala to attend the court in connection with her divorce case, the 2nd respondent visited room No.207 in Park Residency Luxury Business Hotel at Kadavanthra where she was staying and committed rape on her against her will on 25/8/2020.

4. The 2nd respondent moved an application for anticipatory bail on 22/1/2022 at the court below as Crl.M.C.No.179/2022. The petitioner herein got herself impleaded in the bail application. The court below after hearing both sides including the petitioner herein granted anticipatory bail to the 2nd respondent as per the order dated 14th February 2022. The said order is under challenge in this Crl. M.C.

5. I have heard Sri.Blaze K.Jose, the learned counsel for the petitioner, Sri.Millu Dandapani, the learned counsel for the 2nd respondent and Sri.Sangeetha Raj, the learned Public Prosecutor.

6. The learned counsel for the petitioner Sri.Blaze K.Jose submitted that the court must be cautious and circumspect in exercising power u/s 438 of Cr.P.C which is discretionary in nature and that if the discretionary power to grant anticipatory bail was exercised without any valid reason or on considerations irrelevant or not germane to the determination, such order could not be sustained. The learned counsel further submitted that even though all the documents, facts and arguments were urged in detail before the court below, it failed to take notice of those relevant documents or any of the contentions of the petitioner and without bearing in mind the relevant aspects to be considered in an application for anticipatory bail and on a wrong understanding of facts, circumstances and the law on the point granted relief of pre-arrest bail to the 2nd respondent by making perverse and unwarranted findings. According to the counsel, the impugned order suffers from serious infirmities and would prejudicially affect the investigation as well as the trial resulting in serious miscarriage of justice to the petitioner. The counsel also submitted that even though the prosecution case is that the 2nd respondent committed rape on the petitioner against her will, the court below viewed the case on the wrong premises that the 2nd respondent had sexual intercourse with the petitioner after obtaining her consent by giving a false promise of marriage. The finding of the court below that the petitioner did not obtain divorce legally and thus not competent to enter a valid marriage is against the evidence on record, added the learned counsel. He also relied on the decisions of the Apex Court in Muraleedharan v. State of Kerala [(2001) 4 SCC 638] and P.Chidambaran v. Directorate of Enforcement [(2019) 9 SCC 24] to buttress his contention that anticipatory bail should not be granted mechanically and it can be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.

7. Per contra, the learned counsel for the 2nd respondent submitted that the court below did not commit any error as alleged by the petitioner and that it was only after considering the entire facts and relevant records and on hearing the petitioner passed the order granting anticipatory