Kerala High Court
Brammadhathan vs State Of Kerala on 5 March, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:18728
BAIL APPL. NO. 2728 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 5TH DAY OF MARCH 2025 / 14TH PHALGUNA, 1946
BAIL APPL. NO. 2728 OF 2025
CRIME NO.92/2025 OF Peringome Police Station, Kannur
PETITIONER/ACCUSED:
BRAMMADHATHAN
AGED 48 YEARS
S/O.P.K.SUKUMARAN, THADATHIL HOUSE,
VADASSERIKKARA, PATHANAMTHITTA
PATHANAMTHITTA (DIST)., PIN - 689645
BY ADV K.DEEPA (PAYYANUR)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
OTHER PRESENT:
SRI.NOUSHAD K.A., SR.P.P..
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
05.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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2
P.V.KUNHIKRISHNAN, J.
--------------------------------
B.A.No.2728 of 2025
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Dated this the 05th day of March, 2025
ORDER
This Bail Application is filed under Section 482 of
Bharatiya Nagarik Suraksha Sanhita.
2. Petitioner is the accused in Crime No.92/2025
of Peringome Police Station. The above case is registered
against the petitioner alleging offences punishable under
Sections 354(A)(1) and 376(2)(n) of the Indian Penal Code (for
short, IPC) and Sections 69, 318(4), 118(1) of the Bharatiya
Nyaya Sanhita (for short, BNS).
3. The prosecution case is that, during the period
between 16.05.2022 and 26.10.2024, while living together at a
Family Quarters at Peringom, along with their family members
such as his mother and son Dharshan and her daughter, the
accused committed rape on the defacto complainant, who is a
Home Nurse, came there to look after his mother. It is also
alleged that the accused obtained Rs.10 lakhs and 12
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sovereigns of gold ornaments from the defacto complainant.
Hence it is alleged that the accused committed the offence.
4. Heard counsel for the petitioner and the
Public Prosecutor.
5. The counsel for the petitioner submitted that,
even if the entire allegations are accepted, no criminal offence
is attracted. The counsel also submitted that, the petitioner
and the defacto complainant were living together. The
petitioner produced Annexure-I ration card in which the
daughter of the defacto complainant is shown as grand
daughter of the mother of the petitioner. It is also stated that
in the school register of the petitioner's son, the defacto
complainant's name is shown as mother. The counsel
submitted that the allegation that there was a promise to marry
is not correct. The Public Prosecutor opposed the bail
application. The Public Prosecutor made available the FI
Statement in this case.
6. A perusal of the FI Statement would show that
the main allegation against the petitioner is that there was a
promise to marry and based on the same, the defacto
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complainant consented for sexual intercourse. A reading of the
FI Statement would show that the defacto complainant was
staying with the petitioner together for about two years. The
Apex Court in Mahesh Damu Khare v. The State of
Maharashtra and Another [2024 INSC 897] considered the
same issue. The relevant portion of the above judgment is
extracted hereunder:
"22. In our view, if a man is accused of having
sexual relationship by making a false promise of
marriage and if he is to be held criminally liable,
any such physical relationship must be traceable
directly to the false promise made and not
qualified by other circumstances or consideration.
A woman may have reasons to have physical
relationship other than the promise of marriage
made by the man, such as personal liking for the
male partner without insisting upon formal marital
ties. Thus, in a situation where physical
relationship is maintained for a prolonged period
knowingly by the woman, it cannot be said with
certainty that the said physical relationship was
purely because of the alleged promise made by the
appellant to marry her. Thus, unless it can be
shown that the physical relationship was purely
because of the promise of marriage, thereby
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having a direct nexus with the physical
relationship without being influenced by any other
consideration, it cannot be said that there was
vitiation of consent under misconception of fact."
7. The Apex Court in Manish Yadav v. State of
Utter Pradesh & Another [2025 SCC OnLine SC 363] again
considered the same issue. The relevant portion of the above
judgment is extracted hereunder:
"18. Applying the above principle to the case at hand,
it is clearly discernible that in the present case, the
complainant had agreed to indulge in intimate
relations with the appellant on the accord of her own
desires and not on the basis of any false promise of
marriage made by the appellant. Therefore, while the
present case may involve a breach of promise, it does
not constitute a case of an inherently false promise to
marry. Based on the circumstances, it cannot be
concluded that the appellant obtained the
complainant's consent to engage in a physical
relationship under the pretext of a false promise of
marriage.
22. In view of the above discussion, we are of the
opinion that the present case appears to be one where
a consensual physical relationship between two adults
has turned sour due to certain intervening events.
Hence, allowing the prosecution of the appellant for
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the offences mentioned above would tantamount to
sheer abuse of the process of law and nothing else."
Keeping in mind the above principles laid down by the Apex
Court, this Court perused the First Information Statement once
again. I am of the considered opinion that the petitioner can be
released on bail after imposing stringent conditions.
8. Moreover, it is a well accepted principle that
the bail is the rule and the jail is the exception. The Hon'ble
Supreme Court in Chidambaram. P v Directorate of
Enforcement [2019 (16) SCALE 870], after considering all
the earlier judgments, observed that, the basic jurisprudence
relating to bail remains the same inasmuch as the grant of bail
is the rule and refusal is the exception so as to ensure that the
accused has the opportunity of securing fair trial.
9. Recently the Apex Court in Siddharth v State
of Uttar Pradesh and Another [2021(5)KHC 353]
considered the point in detail. The relevant paragraph of the
above judgment is extracted hereunder:
"12. We may note that personal liberty is
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an important aspect of our constitutional
mandate. The occasion to arrest an
accused during investigation arises when
custodial investigation becomes necessary
or it is a heinous crime or where there is a
possibility of influencing the witnesses or
accused may abscond. Merely because an
arrest can be made because it is lawful
does not mandate that arrest must be
made. A distinction must be made between
the existence of the power to arrest and
the justification for exercise of it. (Joginder
Kumar v. State of UP and Others (1994
KHC 189: (1994) 4 SCC 260: 1994 (1) KLT
919: 1994 (2) KLJ 97: AIR 1994 SC 1349:
1994 CriLJ 1981)) If arrest is made
routine, it can cause incalculable harm to
the reputation and self-esteem of a person.
If the Investigating Officer has no reason
to believe that the accused will abscond or
disobey summons and has, in fact,
throughout cooperated with the
investigation we fail to appreciate why
there should be a compulsion on the
officer to arrest the accused."
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10. In Manish Sisodia v. Central Bureau of
Investigation [2023 KHC 6961], the Apex Court observed
that even if the allegation is one of grave economic offence, it is
not a rule that bail should be denied in every case.
11. Considering the dictum laid down in the above
decision and considering the facts and circumstances of this
case, I think bail can be granted after imposing stringent
conditions.
Therefore, this Bail Application is allowed with the
following directions:
1. The petitioner shall appear before the
Investigating Officer within two weeks
from today and shall undergo
interrogation. The petitioner shall appear
before the Investigating Officer two days
consecutively from 10 am to 4pm.
2. After interrogation, if the Investigating
Officer propose to arrest the petitioner, he
shall be released on bail on executing a
bond for a sum of Rs.50,000/- (Rupees
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Fifty Thousand only) with two solvent
sureties each for the like sum to the
satisfaction of the arresting officer
concerned.
3. The petitioner shall appear before the
Investigating Officer for interrogation as
and when required. The petitioner shall co-
operate with the investigation and shall
not, directly or indirectly make any
inducement, threat or promise to any
person acquainted with the facts of the
case so as to dissuade him from disclosing
such facts to the Court or to any police
officer.
4. Petitioner shall not leave India without
permission of the jurisdictional Court.
5. Petitioner shall not commit an offence
similar to the offence of which he is
accused, or suspected, of the commission
of which he is suspected.
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6. Needless to mention, it would be well
within the powers of the investigating
officer to investigate the matter and, if
necessary, to effect recoveries on the
information, if any, given by the petitioner
even while the petitioner is on bail as laid
down by the Hon'ble Supreme Court in
Sushila Aggarwal v. State (NCT of
Delhi) and another [2020 (1) KHC 663].
7. If any of the above conditions are violated
by the petitioner, the jurisdictional Court
can cancel the bail in accordance to law,
even though the bail is granted by this
Court. The prosecution and the victim are
at liberty to approach the jurisdictional
Court to cancel the bail, if any of the above
conditions are violated.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
