IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 6^TH DAY OF SEPTEMBER 2024 / 15TH BHADRA, 1946 BAIL APPL. NO. 4933 OF 2024 CRIME NO.44/2022 OF Yeroor Police Station, Kollam PETITIONER/ACCUSED:

SHAHID S, AGED 26 YEARS, S/O. SABEENA, AMINA MANZIL, KARUKONE. P.O., KOLLAM, PIN – 691 306 BY ADVS.

B.N.HASKAR B.K.GOPALAKRISHNAN RESPONDENTS/COMPLAINANT:

1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031

2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX *XXX IS ADDED AS INTERVENER AS PER ORDER DATED

19.7.2024 IN CRL.M.A 3/24 BY ADVS.

NIRMAL V NAIR ANEES.T SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

06.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ORDER

The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (“Code” for short), for an order of pre-arrest bail.

2. The petitioner is the sole accused in Crime No.44 of 2022 of the Yeroor Police Station, Kollam, which is registered against him for allegedly committing the offences punishable under Sections 363, 366, 376, 376(2)(n) and 506 of the Indian Penal Code, Section 119(b) of the Kerala Police Act and Sections 4, 8, 6 and 5(l) of the POCSO Act.

3. The gist of the prosecution case is that; on

19.06.2017, the accused, with an intention to sexually gratifying himself, kidnapped the defacto complainant (victim), who was a minor child on the date of the incident, by promising that he would marry her, gave her some intoxicating drink, took her nude photographs and shared it on the social media.

Subsequently, on 03.08.2017, at around 23:30 hours, the accused blackmailed the victim and committed rape and penetrative sexual assault on many occasions. Thereafter, on 03.05.2019, the accused got married to the victim bu, within two months he pronounced Thalaq and dissolved the marriage. Thus, the accused has committed the above offences.

4. Heard; Sri. B.N. Haskar, the learned counsel appearing for the petitioner; Smt. Seetha S., the learned Senior Public Prosecutor and Sri. Nirmal V. Nair, learned counsel appearing for the defacto complainant/intervenor.

5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner was the husband of the defacto complainant and, therefore, by no stretch of imagination can the offence of rape be attributed against him. There is an inordinate and unexplainable delay of five years in registering the crime, which by itself proves the falsity in the allegation. The petitioner and the victim had consensual relationship and got married. It was due to the interference of the family members, that the petitioner was compelled to pronounce Thalaq. In Annexure A2 order, this Court has directed the Investigating Officer not to arrest the petitioner for a period of three weeks, to enable him to file an application for anticipatory bail. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed.

6. The learned Public Prosecutor and the learned counsel appearing for the intervenor vehemently opposed the application. They submitted that the petitioner has not only committed the offence of rape and penetrative sexual assault of the victim, but has also cheated her by getting married to her and thereafter pronouncing Thalaq. It is due to the manipulative acts of the petitioner, who got married to the victim, that the victim did not register the FIR. Subsequently after the petitioner pronounced Thalaq, the victim filed Annexure A1 FIR. The delay in filing the FIR has been sufficiently explained by the victim. The fact that the petitioner got married to the victim on 03.05.2019 and subsequently pronounced Thalaq within two months shows the mens rea on his part. In any given case, the petitioner has committed rape on the victim, when she was a minor. Therefore, there is no question of a