Kerala court’s bail order for Rahul Mamkootathil questions woman's consent & delay in filing rape plaint

Pathanamthitta District Sessions Court, which granted bail to Kerala MLA Rahul Mamkootathil in the third rape case on Wednesday, has cited procedural flaws on the part of the police and expressed doubts over the delay in filing the complaint and consent on the promise of marriage.

Sessions Judge N Harikumar totally concurred with the argument of Rahul's counsel that the police did not comply with the mandatory legal provisions while recording the arrest of Mamkootathil based on a complaint filed by a woman who is in Canada.

In the bail plea submitted by Mamkootathil's counsels Sekhar G Thampi and Abhilash Chandran, it was pointed out that the registration of the FIR and the arrest of the petitioner were illegal. The advocate invoked provision 173 (1)(i) of the BNSS, which mandates that a person giving information through electronic communication shall sign the statement within three days from the date of giving the statement. In the present case, the survivor gave the statement on January 8 via Zoom platform.

The statement was scanned and sent to her for signature. According to Mamkootathil's bail plea, the survivor hasn't signed the First Information Statement (FIS) in front of any authority within three days as she was in Canada. It was also cited that the signature of the survivor, as seen in the statement, was not a digital signature, and there was no explanation as to how the signature was obtained.

The sessions court bought this argument, noting that the records do not demonstrate compliance regarding the need for a signature. The court raised doubt as to whether a legally valid first information can be said to have been furnished in the manner contemplated under the law.

"This aspect casts a shadow on the procedural regularity surrounding the registration of the FIR and it is a factor which cannot be completely ignored while considering the present application for bail," the judge observed in the order.

Arundhathi Dileep, Judicial Magistrate of the First Class, Thiruvalla, while denying bail to Mamkootathil in the same case, had rejected the contention regarding signature saying that the implications of not signing the statement within three days was not provided anywhere in the BNSS. The magistrate had also set aside the argument on non-compliance with condition on explaining the grounds of arrest to the accused. The magistrate had quoted an SC order which said that in exceptional circumstances where informing the grounds of arrest is impractical, a police officer may orally convey the same to the person at the time of arrest and later a written copy on grounds of arrest must be supplied to the arrested person within a reasonable time.

The sessions judge, Pathanamthitta, however, found merit in this contention. The judge recorded that the grounds of arrest were not communicated to Mamkootathil in a manner mandated by the law and hence his arrest did not strictly comply with the mandatory requirements under the section 47 of BNSS, which mandates an officer to immediately inform the arrested person of the full grounds for the arrest and, if the offence is bailable, their right to bail and arrangement of sureties.

The judge recalled a Supreme Court order which drew a clear distinction between reasons for arrest and grounds of arrest. Reasons for arrest relate to parameters like necessity for custodial interrogation, prevention of further offences, prevention of tampering with evidence etc.

Grounds of arrest comprise the basic factual allegations and materials in possession of the officer which led to the arrest and the grounds must be communicated in writing. In Mamkootathil's case, the officer recorded under the title 'detailed grounds and reasons of arrest' that he may intimidate witnesses, cause evidence to disappear, and he was involved in two similar offences. The court, however, concluded that these factors constituted reasons for arrest and not grounds of arrest as they didn't disclose the factual particulars of the accusation.

The court also questioned how the survivor could have entered into a legal marriage with Mamkootathil when neither she nor her husband initiated any steps to dissolve their marital tie in accordance with the law.

Mamkootathil's petitioner had argued, quoting from previous court orders, that the consent given by an adult woman on promise of marriage cannot be later converted into criminality merely because the relationship did not culminate in marriage and that such consent cannot be withdrawn so as to attract the offence of rape.

The judge also noted that she made the incident public only after she came to know that other women had also raised allegations of sexual abuse against Mamkootathil. The court said that all these circumstances require a detailed appreciation of evidence to determine whether an offence of rape has been made out.

While taking note of the cordial nature of messages between her and the accused, even after the alleged incident of rape, the judge said that the delay in furnishing the first information assumes relevance. "It is true that victims of sexual offences often hesitate to approach law enforcement agencies for a variety of reasons. However, in her statement, the survivor has not articulated any specific explanation for the delay of about one year and nine months in approaching the police," the order noted.

In her complaint, the survivor had said that she couldn't file a complaint earlier due to fear of retaliation and cyber harassment.