Ker HC | Accused wrongfully charged of committing cheating and rape; Court grants bail in light of fabrication of facts by complainant

Kerala High Court: Alexander Thomas, J. disposed of a matter wherein a complaint was lodged against the petitioner accusing of committing rape and cheating.

In the present case, the complainant, a married lady whose divorce proceedings were still underway had advertised in the matrimonial column of a newspaper seeking a response from interested persons in respect of her marriage proposal. The petitioner responded to the same by agreeing to marry the complainant. Based on the assurance, both the parties shared an intimate relationship and indulged in sexual intercourse. However, later, the petitioner showed disinterest in the marriage proposal.

It has been stated by the complainant that the petitioner had taken Rs 2 lakhs from her and also her gold ornaments coming to 35 sovereigns and that she has been cheated and that she had given her consent to have sexual intercourse with the petitioner only on the basis of the assurance that he would marry her and that the petitioner has committed the abovesaid offences.

The complainant was filed under Section 376 of the Penal Code, 1860.

The Counsel representing the petitioner, V. John Mani, submitted that the complainant had suppressed facts from the petitioner by seeking marriage from the petitioner despite being a married woman at that point of time as the divorce proceedings were still underway and thus, it was the petitioner who had been cheated. Further, it was submitted that there was a falsification of facts when the complainant stated that the petitioner had borrowed money and gold ornaments, since, the complainant had extracted amount more than five lakhs from the petitioner.

In addition to the above, it was stated that the arrest and detention of the petitioner is absolutely illegal and ultra vires and that going by the admitted allegations in the FIS, the Police has committed a serious illegality in arresting the petitioner and that the arrest and detention of the petitioner is against the binding decisions of the Supreme Court and various High Courts in respect of the legal position relating to the lawful arrest of the accused persons in such cases.

The public prosecutor for the state, T.R. Renjith contended that the Police was given 3 days time for custodial interrogation of the petitioner, after his remand and that the petitioner has not co-operated with the investigating officer in respect of the recovery of the gold ornaments alleged to have been taken by the petitioner from the lady and that the petitioner is likely to threaten or intimidate the complainant, if he is let out on bail.

High Court upon perusal of the facts and circumstances of the case expressed its dissatisfaction with the police authorities arresting the petitioner for the period of time in a case wherein the complainant herself had requested for marriage proposals despite not being lawfully declared as divorced from the former marriage.

Adding to the above, Court stated that, “the petitioner has got a specific case that the lady has suppressed the fact that she was twice married and that though she had secured divorce in respect of her first marital relationship, divorce proceedings are still pending in respect of her second marital relationship, etc. The Police is duty-bound to investigate the crucial aspects as to whether the lady is twice married as alleged by the petitioner. If that be so, it is for the Police authorities to take serious note of such aspects which has been suppressed by the lady defacto complainant in her FIS.”

Thus, bail was granted to the petitioner, however with certain conditions of not committing any offence while on bail, not interacting with the complainant or tampering with evidence. [Prasanth Nelson v. State of Kerala, 2019 SCC OnLine Ker 2934, decided on 18-09-2019]

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