Pre-arrest bail can be granted under Section 438 of the Cr.P.C. when the prosecution's allegations appear improbable, warranting careful consideration of the situation.

ORDER

This is an application for pre-arrest bail under Section 438 of the Cr.P.C.

2. Petitioner is an accused in Crime No.282 of 2021 of Ambalathara Police Station, Kasargod, alleging offences under Sections 376 and 420 of the Indian Penal Code, 1860.

3. The prosecution case is that petitioner travelled from Kozhikode to Kasargod in the last week of March 2020 and committed sexual intercourse with the defacto complainant, who was an employee of the business partner of the petitioner and thereafter continued to rape her till January 2021, after taking photographs of their sexual relationship.

4. Sri.John Mathew, the learned counsel for the petitioner submitted that petitioner is totally innocent of the allegations and that the prosecution case is inherently improbable and false especially since from the last week of March 2020, the entire nation went into a lock-down with total travel restrictions. It was further submitted that the reason for the false complaint is a financial dispute between the brother-in-law of the defacto complainant and the petitioner and hence grant of pre-arrest bail is eminently required.

5. The learned Public Prosecutor upon instructions submitted that the allegations raised against the petitioner are serious in nature and that petitioner is even alleged to have taken photographs of the defacto complainant and using the same, committed sexual intercourse with her. It was also submitted that custodial interrogation of petitioner is essential to unraveled the truth. 6. Smt.G.N.Deepa, the learned counsel for the defacto complainant also asserted that petitioner ought not to be released on pre-arrest bail, since custodial interrogation is necessary to identify the truth of the allegation. It was also pointed out that petitioner has committed a heinous offence and hence, the application is to be dismissed.

7. While considering the contentions raised, I find prima facie force in the submission of the learned counsel for the petitioner that, there is an anomaly in the prosecution case, especially relating with respect to the initial date of rape alleged to have been committed by the petitioner I take judicial notice of the fact that in the last week of March, the entire nation had gone into a lock-down and the possibility of travel from one district to another was practically impossible except in exceptional circumstances. However, taking note of the circumstances, I am of the view that this application can be allowed by granting limited custody on the following conditions.

(i) Petitioner shall surrender before the Investigating Officer on 20.06.2022 and shall subject himself to interrogation. Petitioner shall also appear before the Investigating Officer on the succeeding three days also ie; from 21/6/2022 till 23/6/2022 and the petitioner shall be interrogated from 9am. to 6pm.

(ii) If after interrogation, the Investigating Officer proposes to arrest the petitioner, then, he shall be released on bail on him executing a bond for Rs.50,000/- [Rupees Fifty thousand only] with two solvent sureties each for the like sum.

(iii) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the defacto complainant or her family members;

(iv) Petitioner shall not enter the limits of Ambalathara Police Station for a period of six months except for complying with the conditions of this order. If for any reason the applicant requires to enter the limits, previous permission must be obtained from the jurisdictional Court.

(v) Petitioner shall not commit any offence while he is on bail.

(vi) Petitioner shall not leave India without the permission of the Court having jurisdiction.

(vii) In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.

This application is allowed