SATHAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The subject crime in this case is Crime No.419 of 2019 of the Peramangalam Police Station, Thrissur, which was initially registered for the offences punishable under Sections 448, 354 and 506 of the IPC on the basis of the FI Statement given by the lady defacto complainant on 11.05.2019 at about 3.54 p.m in respect of the alleged incident happened on 10.02.2019 and the petitioner thereby has been arrayed as the sole accused in the said crime for the aforesaid offences.

(2.) The allegations in the said FIS given by the lady defacto complainant is that the petitioner, aged 42 years is the immediate neighbour of the lady defacto complainant, aged 3o years having four children. The petitioner is also a married person living with his family and he used to threaten her that she should marry him and he had animosity against her for her refusal to marry him. On 10.02.2019 at about 7.45 a.m she had barged into her house, caught hold of her hand, pulled her and outraged her modesty and thus committed the aforesaid offences punishable under Sections 448, 354 and 506 of the IPC. The petitioner was arrested and reamanded in the aforesaid crime on 12.05.2019. He was under detention for about four days and thereafter he was released on regular bail as per order dated 14.05.2019 rendered by the Judicial First Class Magistrate Court, Kunnamkulam in the aforesaid crime. Thereafter, it appears that the lady defacto complainant has given an additional statement on 18.06.2019 under Section 161 Cr.P.C to the Police wherein she has stated that the petitioner had raped her on 04.03.2019 after 7 p.m in the motor shed situated near her house whereupon, the Police has submitted Annexure A2 additional report dated 18.06.2019 before the learned Magistrate seeking permission of the said court to arrest the petitioner for the newly added offence as per Section 376 of the IPC based on the said additional statement given by the lady defacto complainant on 18.06.2019. The Police has sought such permission as per Annexure 2 as the petitioner was already granted regular bail by the Magistrate in relation to the aforesaid crime. The learned Magistrate has now passed Annexure A3 order dated 11.07.2019 in Crl.M.P. No.2714 of 2019 in Crime No.419 of 2019 of the Peramangalam Police Station whereby, it has been held that the said plea of the prosecution could be treated as one under Section 437(5) of the Cr.P.C and has ordered that though the bail earlier granted to the petitioner for the earlier offences need not be cancelled, the Police will be at liberty to arrest the petitioner and commit him to custody on adding the additional offence under Section 376 of the IPC based on the abovesaid additional statement given by the lady defacto complainant.

(3.) After hearing both sides, this Court is of the view that, the learned Magistrate is correct in holding in the impuned order that the said Court is having jurisdiction and competence under Section 437(5) of the Cr.P.C to consider the said plea of the prosecution for permission to arrest the accused where an additional serious offence has been subsequently included even though bail was earlier granted to the accused for the earlier included offences in the very same crime. But after hearing both sides, this Court has no hesitation to hold that the further view taken by the learned Magistrate that the present case is a fit case wherein such permission could be granted is absolutely perverse and unreasonable for the following reasons.