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IN THE HIGH COURT OF KERALA AT ERNAKULAM
BECHU KURIAN THOMAS, J.
Vijay Babu, S/O V.Subash Chandra Babu – Appellant
Versus
State Of Kerala – Respondent
Bail Appl. No.3475 of 2022
Decided on : 22-06-2022
Indian Penal Code, 1860 – Criminal Procedure Code, 1973 – Section 438, 164 – Evidence Act, 1872 – Section 114A, 53(a) – Rape – Direction for grant of bail to person apprehending arrest – Recording of confessions and statements – Apprehending arrest in a non-bail able offence – A cine artist cum producer has approached this Court seeking pre-arrest bail under section 438 of Code of Criminal Procedure, 1973 – Petitioner alleges that ingredients of offences are not made out and hence his liberty ought not to be curtailed, unless and until he is found guilty in accordance with procedure established by law – Held, Though learned Additional Director General of Prosecution and the learned counsel for the survivor laid great emphasis on presumptions available under section 114(a) as well as under section 53(a) of Evidence Act 1872, Court of view that at stage of considering grant of pre-arrest bail, those provisions cannot be given undue preference – Presumptions provided under section 114(a) and section 53(a) are rebuttable – Further, as provisions themselves indicate, those presumptions will arise only when substantive evidence is adduced in a court of law i.e; at stage of trial – Time has therefore not yet reached to apply those presumptions – On a consideration of above-mentioned circumstances, Court of view that petitioner ought to be given the benefit of pre-arrest bail, subject to condition of limited custody to investigating officer, as contemplated in decision of Supreme Court – Court allow application.
ORDER :
Apprehending arrest in a non-bailable offence, a cine artist cum producer has approached this Court seeking pre-arrest bail under section 438 of the Code of Criminal Procedure, 1973, (for short the Cr.P.C). Petitioner alleges that the ingredients of the offences are not made out and hence his liberty ought not to be curtailed, unless and until he is found guilty in accordance with the procedure established by law.
2. On 22.04.2022, on the basis of information received from an actress alleging several instances of rape committed on her by the petitioner, Crime No.515 of 2022 of Ernakulam Town South Police Station was registered. A statement was also given by the victim under Section 164 Cr.P.C on 23.04.2022. The petitioner is alleged to have committed rape on the victim with the promise of marriage, twice during her menstrual periods and on other occasions, after causing physical injuries and without her consent. The prosecution further alleges that, on coming to know about the registration of the crime, petitioner went abroad in an attempt to flee from the hands of law and sitting in the comfort of another country, instituted this bail application under section 438 of Cr.P.C.
3. Petitioner, on the other hand, denies the allegation of rape as wholly false and pleaded that the accusation is only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine, by the Director of that movie, in a new movie project proposed to be produced by the petitioner. The survivor even expressed her ire at the new heroine in front of many people, on 18-04-2022. It was also pleaded that evidence of the nature of relationship between the petitioner and the survivor is available in plenty, on the mobile phones through WhatsApp messages and Instagram chats and other documents. It is alleged that, by quirky conduct, a consensual relationship is projected as rape.
4. Sri.S.Rajeev, learned counsel for the petitioner contended that though the allegations of rape are alleged to have occurred between 16.03.2022 to 14.04.2022, the victim never rushed to a police station and on the other hand she gave the complainant only on 22.04.2022. It was submitted that petitioner left for Dubai on a pre-planned trip and that, subsequent to his return under the protection of an order from this Court, he has been subjected to interrogation for more than 38 hours. Petitioner contends that he has voluntarily surrendered the two mobile phones in his possession and has also handed over all documents available with him. On the aforesaid basis, it was urged that further custodial interrogation of the petitioner was not warranted and that he is willing to cooperate with the investigation.
5. The learned Counsel also argued that an acquaintance with the victim from 2018 onwards slowly turned into a relationship with instances of consensual sex. Further, the consensual sexual relationship was done with the knowledge that petitioner was a married man and therefore the offences alleged are not made out at all. On behalf of the petitioner, it was further contended that the numerous WhatsApp messages between the petitioner and the survivor will reveal the nature of their relationship. The phones having been already handed over to the police, even the deleted messages between 16-03-2022 to 31-03-2022, which were deleted before the present allegations cropped up, can also be retrieved by scientific analysis, for which the mobile phones have already been forwarded.
6. Sri. Grashious Kuriakose, the learned Additional General of Prosecutions vehemently opposed the grant of pre-arrest bail and submitted that the practice of filing applications for bail sitting outside the country, should not be entertained. He further submitted that the investigation has collected evidence against the petitioner and the offences alleged being serious and heinous, grant of pre-arrest bail will not only prejudice the investigation but will also
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