The court established that credible evidence and context are essential in determining the necessity of custodial interrogation in anticipatory bail applications.

ORDER

This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure .

2. The petitioner is the sole accused in the case registered as Crime No.3347 of 2017 of Kottiyam Police Station under Sections 417, 420 and 376 I.P.C. The prosecution case is that the petitioner and the de facto complainant were living together as husband and wife and that the petitioner has been missing from their residence from 19.09.2017 onwards and that he has taken away 18 sovereigns of gold ornaments and Rs.2,50,000/- belonging to the de facto complainant and thereby he cheated her. The offence punishable under Section 376 I.P.C was added in the case later on the basis of the further statement given to the police by the de facto complainant that the petitioner had committed sexual intercourse with her several times.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor and perused the case diary.

4. It is true that the offence punishable under Section 376 I.P.C is alleged against the petitioner. However, even in the first information statement given to the police, the de facto complainant has stated that the petitioner and herself have been living together as husband and wife for the last four years. There is no allegation in the first information statement that the petitioner committed sexual intercourse with the de facto complainant without her consent. When it is admitted that the petitioner and the de facto complainant have been living together as husband and wife for the last four years, the story of rape has to be viewed with suspicion. However, there is allegation that the petitioner took away 18 sovereigns of gold ornaments and huge amount of money from the de facto complainant. But, considering the facts and circumstances of the case, especially the fact that the petitioner and the de facto complainant were living together for the last four years, custodial interrogation of the petitioner appears to be not necessary to have an effective investigation. Considering these aspects, I find that the discretion of the court can be exercised in favour of the petitioner to grant him pre- arrest bail, provided he would co-operate with the investigation of the case.

In the result, the petition is allowed and it is ordered as follows:

1) The petitioner shall be released on bail on executing a bond for Rs.50,000/- with two sureties each for the like amount in the event of his arrest by the police in Crime No.

3347of 2017 of Kottiyam Police Station.

2) Before releasing the petitioner on bail, the investigating officer is entitled to interrogate the petitioner and also subject him to medical examination including conducting of potency test.

3) The petitioner shall appear before the investigating officer between 9 a.m and 11 a.m on all Mondays and Thursdays for a period of two months from the date of his release on bail.

4) The petitioner shall not influence or intimidate the de facto complainant and the other prosecution witnesses. He shall not make any attempt to tamper with the evidence in the case.

5) The petitioner shall produce his passport in the Magistrate's Court within three days from the date of his release on bail. If he has no passport, he shall file an affidavit to that effect in that Court concerned within that period. 6) The petitioner shall not leave the State of Kerala without the prior permission of the Court having jurisdiction over the case.

7) The petitioner shall appear before the investigating officer as and when directed in writing to do so.