Kerala High Court Upholds MLA Eldhose Kunnappilly's Anticipatory Bail In Rape Case
The Kerala High Court on Friday dismissed the petitions seeking cancellation of Congress MLA Eldhose Kunnappilly's anticipatory bail in the case accusing him of rape and attempt to murder of a woman.
Justice Kauser Edappagath observed that:
The cancellation of bail is directly linked with the personal liberty which is one of the cherished constitutional freedoms guaranteed under Article 21 of the Constitution of India and hence it must not be lightly resorted to.
The Court noting that nothing in the impugned order granting bail to the accused is illegal or is in the wrongful exercise of jurisdiction warranting interference, dismissed the petitions.
There is nothing on record to suggest that the impugned order granting bail to the first accused is perverse, unjustified, illegal or is vitiated by the arbitrary and wrong exercise of jurisdiction warranting interference by this court invoking jurisdiction under section 482 of Cr.P.C. Both Crl.M.Cs, accordingly, are dismissed.
In the Petition, moved through Additional Public Prosecutor, it was argued that the lower court erred in granting pre-arrest bail at the initial stage of the investigation. The State also contended that custodial interrogation is highly necessary in the case. The other petition against the grant of pre-arrest bail to Kunnappilly was moved by the complainant.
According to the police case, Kunnappilly, who is an MLA representing Perumbavoor constituency, maintained frequent contact with the victim through calls and Whatsapp messages since 2018. He would also send her obscene videos and also "instigated her" to visit the MLA Hostel.
It is alleged that on July 4, the accused invited the victim to Somatheeram Resort in Kovalam on the pretext of him having a meeting there, and raped her by giving her false assurance that he would look after her "for the rest of her life." The prosecution has alleged that there were several such incidents of physical assault and rape with the victim.
The Additional Sessions Court at Thiruvananthapuram in Kerala, earlier granted anticipatory bail to the MLA. ASJ Prasun Mohan in the order said the victim or rape survivor in her first complaint dated September 28 never "asserted" that the accused raped her "on any dates before the date of presenting the complaint". Survivor was well aware of the fact that the 1st accused is a married man maintaining a family relationship, the court had said.
According to the prosecution, the long-standing relationship between the accused and the victim ran into rough weather when she was raped and physically assaulted several times by the accused.
The Counsel appearing for the victim, submitted before the Court that even though the prosecution case is that the first accused committed rape on the victim against her will, the court below viewed the case on the wrong premise that the first accused had sexual intercourse with the victim after obtaining her consent by giving a false promise of marriage.
Hearing the prosecution's appeal against the grant of pre-arrest bail, the high court had earlier observed that "Initially there was love, then rape, followed by certain consensual acts, and then love again. It appears to be an unusual story, but still, if any of those were not consensual, of course rape is effected. But all these sequences of events have to be read together".
Court after perusing the impugned order and considering the facts and circumstances of the case, that there is nothing on record to suggest that the impugned order granting bail to the first accused is perverse, unjustified, illegal or is vitiated by the arbitrary and wrong exercise of jurisdiction warranting interference by this court invoking jurisdiction under section 482 of CrPC.
There must be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting bail.
The Court pointed out that despite the victim being aware of how a statement is to be given to the police, still the alleged sexual assault or rape was conspicuously absent in the FIS and no explanation whatsoever was given either by the victim or the prosecution why it was not mentioned in the FIS.
The Court further opined that the victim alleged that on 4.07.2022, she was sexually assaulted by the first accused giving her assurance that he will look after her for the rest of her life, however, both the victim and the first accused were married people and therefore the victim knew pretty well that a legal marriage between them was impossible.
Further, regarding the allegation of attempted murder, the Court observed that the allegations raised against the first accused are hardly sufficient to attract the ingredients of section 307 of IPC.
The Court thereby dismissed both petitions.
Special Government Pleader (Atrocities Against Women and Children) Advocate Ambika Devi appeared for the State.
Advocate Suman Chakravarthy appeared for the Defacto Complainant.
Advocates S. Rajeev, V. Vinay, Sarath K.P., M.S. Aneer and Prerith Philip Joseph appeared for the accused.
Case Title: State Of Kerala v. Eldhose Kunnapilly and XXXXX v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 630