Kerala High Court
Kuldeep M vs State Of Kerala on 8 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
BAIL APPL. NO. 2507 OF 2022
CRIME NO.290/2022 OF Palarivattom Police Station, Ernakulam
PETITIONERS/ACCUSED:
1 KULDEEP M
AGED 32 YEARS, S/O. KRISHNAN,
MOOLAKKLE VEEDU,
MANIYAMPARA, RAVANESWARAM,
CHITHARI, KASARGOD,
KERALA,
PROPRIETOR AND CEO,
M/S. THE DEEPINK TATTOOZ,
FIRST FLOOR, MGV TOWERS,
PALLISSERY JUNCTION, PUTHIYAROAD,
ERNAKULAM., PIN - 671316
BY ADVS.
SHERRY J. THOMAS
JOEMON ANTONY
RENISH RAVEENDRAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
XXXXX
*(ADDL.R2 IS IMPLEADED AS PER ORDER DATED
*2
08.06.2022 IN Crl.M.A. No.1 OF 2022)
BY SMT.M.K.PUSHPALATHA, SR.PUBLIC PROSECUTOR
C.J.VARGHESE VINU
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
08.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A. No.2507/22 -:2:-
BECHU KURIAN THOMAS, J.
--------------------------------
B.A. No.2507 of 2022
---------------------------------
Dated this the 8th day of June, 2022
ORDER
This is an application for pre-arrest bail under section 438
of the Code of Criminal Procedure, 1973.
2. Petitioner is the proprietor of a Tattoo Art School in
Kochi. He faces an indictment in Crime No. 290 of 2022 of
Palarivattom Police Station, Ernakulam, alleging offences under
sections 417, 354A(1)(i), 354A(2), 328, 376(2)(n), 354C and
506 of the Indian Penal Code, 1860.
3. The prosecution case is that the accused indulged in
sexual relationship with the defacto complainant after conveying
that he is a divorcee, willing to marry her. The FIR registered
against the petitioner alleged that the accused after offering to
teach the art of tattooing to the defacto complainant to enable
her to become a tattoo artist and work in the petitioner's
establishment forcibly kissed her on 21.07.2020 and committed
rape on her on 22-07-2020. Two days later also, petitioner is
alleged to have compelled her to consume liquor and forced her
to perform oral sex on him and thereafter repeatedly raped her
in the tattoo school, after threatening to publish the videos on
social media, taken through candid cameras.
4. Sri. Sherry J.Thomas, the learned counsel contended
that petitioner is totally innocent of the allegations and that the
complaint has been raised to wreak vengeance against the
petitioner for initiating proceedings to terminate her services
from the tattoo school. It was also submitted that the defacto
complainant was a former student of the tattoo school who had
joined the school along with the petitioner's wife for the same
course at the same time and hence she cannot feign ignorance of
petitioner's marriage. It was also alleged that the defacto
complainant had committed irregularities and that she along with
another staff were terminated on 14-01-2022. The present
complaint has been initiated after the defacto complainant was
served with charge memos and termination notices. Apart from
the above, it was also alleged that even going by the allegations,
the dates of the alleged sexual relationship were at a time when
the defacto complainant herself remained married, which can be
understood from the order of the Family Court, Tirur dated
22-06-2021 produced as additional Ext. A11.
5. Sri.C.J.Varghese Vinu, the learned counsel for the
defacto complainant on the other hand contended that the
petitioner had mercilessly raped the victim with the promise of
marriage without divulging his existing marriage. He pointed out
that even prior to the filing of the petition for mutual consent,
the victim was as good as divorced, as she was living separately
from her husband and hence the contention based on the date of
filing of petition for mutual consent had no significance.
6. Smt. M. K Pushpalatha, the learned Public Prosecutor
submitted that there are very serious allegations against the
petitioner and that custodial interrogation is essential in the
circumstances of the case. It was further contended that the
petitioner is alleged to have committed rape on the petitioner,
after promising to marry her and by suppressing the fact of his
subsisting marriage.
7. On a perusal of section 164 Cr.P.C. statement given by
the 31 year old victim, the defacto complainant alleges to be a
divorcee when she met the accused through Facebook, sometime
in 2020. It is also alleged that after coming to know that the
victim is a divorcee, petitioner offered to marry her since he
himself claimed to be a divorcee and thereafter promised to
teach her a course to become a tattoo artist. The victim further
alleges that believing the words of the accused, she came down
to Ernakulam on 20-07-2020 and he committed the alleged acts
on the next day and again indulged in sexual relationship with
her on 22-07-2020, despite her objections and even thereafter.
The defacto complainant further stated that she came to know
about the existing marriage of the accused only sometime in
December 2020 and that she had handed over 10 sovereigns of
gold to the accused in February 2021, which was not returned
and in the meantime, she resigned her job under the accused in
January 2022.
8. A reading of the statement given by the defacto
complainant prima facie reveals that the instances of rape are
alleged to have occurred prior to February 2021. Ann.A11
additional document, produced by the petitioner, which is not
disputed, shows that the original petition for divorce filed on the
ground of mutual consent, by the victim and her former husband
was only on 05-02-2021. Of course, the order of the Family
Court indicates that the defacto complainant and her husband
were living separately for four years. However, as on the alleged
date of rape, the defacto complainant had a subsisting marriage.
The allegation of sexual relationship with promise to marry is a
matter which requires investigation. The documents produced by
the petitioner regarding the termination of the victim and the
photographs cannot be looked into at this stage but may have to
be investigated. However, the investigation can be effectively
carried out through limited custody.
9. Considering the aforesaid circumstances, I am of the
view that though custodial interrogation of the petitioner may be
required, only limited custody will suffice. Hence pre-arrest bail
can be granted on the condition of limited custody as
contemplated in the judgment in Sushila Agarwal v. State
(NCT of Delhi) and Another [(2020) 5 SCC 1].
10. In view of the above, the petitioner shall surrender
before the investigating officer on 13-06-2022 and subject
himself to interrogation for all or any of the next four days from
9 AM till 6 PM. If after interrogation, the Investigating Officer
proposes to arrest the petitioner, then he shall be released on
bail on the following conditions:
(i) Petitioner shall execute a bond for Rs.1,00,000/-
(Rupees One Lakh only) with two solvent sureties each for
the like sum, before the Investigating Officer.
(ii) Petitioner shall appear before the Investigating Officer
on all second and fourth Mondays between 10 a.m. and 1
p.m., for a period of three months or until the final report
is filed, whichever is earlier.
(iii) Petitioner shall not intimidate or attempt to influence
the witnesses; nor shall he tamper with the evidence or
contact the victim or her family members.
(iv) He shall not commit any offence while he is on bail.
(v) The applicant shall not leave India without the
permission of the Court having jurisdiction.
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.
The application for pre-arrest bail is allowed to the above
extent.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
/TRUE COPY/ PS TO JUDGE
