M J JOHNSON Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are the accused in Crime No.1189/2023 of Thalassery Police Station, Kannur District alleging commission of offences under Ss. 376, 354, 120B read with Sec. 34 of the Indian Penal Code.

(2.) The petitioners are stated to be practising lawyers. The allegation against the petitioners essentially is that after the de facto complainant / victim approached the 1st petitioner in the year 2021 for the purposes of filing proceedings before the Family Court, Kozhikode for obtaining divorce from her husband, the 1 st petitioner sexually abused the de facto complainant / victim. It is alleged that the 1st petitioner had invited the de facto complainant / victim to meet him at a hotel in Kozhikode and after offering her a drink which was spiked, he sexually abused her. It is alleged that thereafter the 1st petitioner promised the de facto complainant / victim that she would be taken care of just as his wife and the education of the daughter of the de facto complainant / victim would also be taken care of. A further promise was allegedly made that the accused would purchase for the de facto complainant / victim a house in Kozhikode. It is alleged that thereafter the de facto complainant / victim was sexually abused on several occasions. It is alleged that the de facto complainant / victim was asked to come to Tellicherry and there the 2nd petitioner who is a colleague of the 1st petitioner also sexually abused the de facto complainant / victim. It is also alleged that the 1st petitioner / 1st accused had recorded certain nude pictures and videos of the de facto complainant / victim on his mobile phone and therefore the petitioners had committed the offences alleged against them.

(3.) The learned counsel appearing for the petitioners would contend that the petitioners are fairly successful Advocates practising in the courts at Tellicherry and at Kozhikode. It is submitted that the de facto complainant / victim had approached the 1st petitioner seeking his professional help in filing a petition for obtaining divorce. It is submitted that the petition for divorce was filed before the Family Court, Kozhikode and by Annexure-I order in O.P No.1011/2022 on the file of the Family Court, Kozhikode, divorce was granted to the de facto complainant / victim. It is submitted that the wedding of the daughter of the 1st petitioner was fixed for 1/7/2023. It is submitted that Annexure-II is a copy of the invitation card. It is submitted that on knowing that the wedding of the daughter of the 1 st petitioner was fixed on 1/7/2023, Annexure-III complaint was filed by the de facto complainant / victim. Annexure-III was addressed to the City Police Commissioner, Kozhikode, but it was taken on record as a complaint by the Station House Officer, Nadakkavu Police Station, Kozhikode. It is submitted that according to the de facto complainant / victim, after she had approached the office of the City Police Commissioner, she was directed to approach the Station House Officer, Nadakkavu Police Station. The learned counsel for the petitioners submit that there are allegations in Annexure-III complaint dtd. 30/6/2023, that would indicate that even according to the de facto complainant / victim she was aggrieved by the fact that she had not received sufficient compensation following her divorce and she was also aggrieved by the fact that though the petitioners had offered her financial help and had given her other promises such as helping in the education of her child and helping her to purchase a house, none of those promises were kept by the petitioners, therefore she wants action to be taken in the matter to ensure that all disputes are settled. It is submitted that thereafter on the basis of advice of friends and relatives the petitioners had agreed to pay a sum of Rs.3,00,000.00 to the de facto complainant / victim and accordingly a sum of Rs.3,00,000.00 was transferred to the account of the de facto complainant / victim, following which she gave Annexure-V letter to the City Police Commissioner, Kozhikode on 03-07- 2023 stating that any relationship between the de facto complainant / victim and the petitioners was purely consensual and she does not wish to prosecute the complaint in any manner. It is submitted that after giving Annexure-V (produced along with Crl. M.A. No.2/2023) letter dtd. 3/7/2023, the de facto complainant / victim filed Annexure-R3 (a) complaint before the Station House Officer, Tellicherry Police Station containing allegations distinct from the allegations contained in the complaint filed before the City Police Commissioner (AnnexureIII). It is submitted that very serious allegations were raised in the Annexure-R3 (a) including a complaint that certain nude pictures and videos of the de facto complainant / victim had been recorded on a red color Apple phone. It is submitted that Annexure-R3 (a) is dtd. 29/8/2023 and 2 days later on 31/8/2023 an identical complaint was filed before the Superintendent of Police, Kannur, which is on record as Annexure-R3 (b) along with the counter affidavit of the additional 3rd respondent (de facto complainant / victim). It is submitted that on 3/9/2023 a private complaint [Annexure-R3 (c)] was filed before the Judicial First Class Magistrate Court, Tellicherry containing very same allegations as raised in Annexure-R3 (a) and (b) complaints. It is submitted that even in the complaint filed before the learned Magistrate, allegations distinct from the allegations raised in the first complaint before the City Police Commissioner, Kozhikode were raised against the petitioners. It is submitted that Anenxure-R3 (c) was referred for investigation by the police under Sec. 156 (3) Cr.P.C and it is accordingly that Crime No.1189/2023 of Tellicherry Police Station has been registered against the petitioners alleging commission of offences punishable under Ss. 376, 354, 506, 120-B read with the Sec. 34 of the Indian Penal Code and Sec. 35 of the Advocates Act, 1961. It is submitted that while it may not be proper for this court to enter into any finding regarding the nature of the relationship between the petitioners and the de facto complainant / victim, it is evident that even according to the complaint of the de facto complainant / victim the relationship can only be termed as consensual. It is reiterated that the petitioners are fairly successful lawyers and having practice in courts in Tellicherry and Kozhikode and any arrest and detention of the petitioners may cause serious prejudice to the petitioners and also to their families. It is submitted that the Supreme Court in Bhadresh Bipinbhai Sheth v. State of Gujarat and another; (2016) 1 SCC 152 considered the scope of anticipatory bail where very serious offences are alleged. It is submitted that the aforesaid decision is authority for the proposition that there is nothing in the law which would indicate that anticipatory bail cannot be granted when an offence of rape is alleged. It is submitted that the Supreme Court has found that a great ignominy, humiliation and disgrace is attached to arrest and arrest leads to many serious consequences not only for the accused but also for the entire family and at times for the entire community. It is submitted that the Supreme Court has observed that most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage and there is no justification for reading into Sec. 438 the limitations mentioned in Sec. 437 of the Cr.P.C. It is submitted the decision is authority for the proposition that there is no requirement that the accused must make out a special case for the grant of anticipatory bail. It is also pointed out that the said decision takes the view that an accused is entitled to the presumption of innocence till he is convicted by a court of competent jurisdiction. The learned counsel also referred to various decisions to contend that there is difference between consensual sex and rape. However, I do not intend to burden this judgment with reference to those judgments as I do not propose to make any finding as to whether there was a consensual relationship between the petitioners and the de facto complainant / victim as it would not be proper for this court to make any observation regarding the same in an order considering the anticipatory bail application of the petitioners.