Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 30TH DAY OF JULY 2024 / 8TH SRAVANA, 1946 BAIL APPL. NO. 3807 OF 2024 CRIME NO.179/2024 OF PADINJARTHARA POLICE STATION, WAYANAD PETITIONER/ACCUSED: XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. M.MUHAMMED SHAFI T.RASINI ADHEELA NOWRIN RESPONDENT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR PP SMT NEEMA T V THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Dated this the 30th day of July, 2024
ORDER
The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for short), for an order of pre-arrest bail.
2. The petitioner is the accused in Crime No.179/2024 of the Padinjarathara Police Station,
Wayanad, which is registered against the accused for allegedly committing the offences punishable under Sections 363, 377 and 506 of the Indian Penal Code (in short, IPC) and Sections 3(d), 4(2), 7 and 8 of the Protection of Children from Sexual Offences Act (in short, ‘Act’).
3. The gist of the prosecution case is that: on
14.4.2024, at around 19.00 hours, the accused took the victim, a boy aged 14 years, on his scooter against his will to a garden situated near his house and committed unnatural sexual offence and also penetrative sexual assault. The accused tied the hands and legs of the victim with plastic ropes, put him on the ground, and touched his genitals. Thereafter, he made the victim indulge in oral sex and committed penetrative sexual assault. He threatened to murder the victim. Thus, the accused has committed the above offences.
4. Heard; Sri.M.Muhammed Shafi, the learned counsel for the petitioner and Smt.Neema T.V, learned Senior Public Prosecutor.
5. The learned counsel for the petitioner submitted that the petitioner is innocent of the
accusations levelled against him. He has been falsely implicated in the crime. In fact, the victim had committed theft in the locality and was summoned by the Mahal committee, where the petitioner’s brothers are the President and Secretary for several years. Since, the victim was summoned by the Mahal Committee and he was put to embarrassment and shame, he has lodged the present frivolous complaint. The petitioner is a law
abiding citizen without any criminal antecedents. The petitioner is a school bus driver for many years. If the petitioner is remanded to judicial custody, it would cause severe hardship to him. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed.
6. The learned Public Prosecutor seriously
opposed the application. She submitted that the petitioner has committed a very heinous crime of committing unnatural sexual offence and penetrative sexual assault on the victim. There are incriminating materials to substantiate the petitioner’s involvement in the crime. She drew the attention of this Court to the First Information Statement as well as the 164 statement of the victim, wherein the victim has narrated the sexual
assault ordeal. She stated that the petitioner’s custodial interrogation is necessary and medical examinations have to be conducted. If the petitioner is granted an
order of pre-arrest bail, it would certainly torpedo the
entire investigation. Hence, the application may be dismissed.
7. The prosecution case against the petitioner is
that, he had committed an unnatural sexual offence and also penetrative sexual assault on the victim after tying the hands and legs of the victim with plastic ropes. It is on seeing a third party that the petitioner fled away from the scene of occurrence. On a scrutiny of the First Information Report and 164 statement of the victim, I
find that the victim has spoken inline with the
prosecution case. Similarly, on going through the treatment records, it can be seen that the victim had certain scratches and abrasions on his body. Whether or not the petitioner has committed the above offence is a matter that is to be investigated and ultimately decided at the time of trial. The fact remains that the allegations made against the petitioner are serious and grave. In view of Section 29 of the Act, no presumption of innocence can be drawn in favour of the petitioner.
8. In Sujith v. State Of Kerala[2018(3) KHC 641], this Court after considering Section 20 of the Act has observed as follows:
“14. S.29 of the Act states that where a person is prosecuted for committing or abetting or attempting to commit any offence under S.3, S.5, S.7 and S.9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. Therefore, the principle that an accused is presumed innocent till found guilty, will not apply to a case under S.3, S.5, S.7 and S.9 of the Act with its full rigor. The Court shall take into consideration the presumption under S.29 of the Act while dealing with an application for bail filed by a person who is accused of the offences under S.3, S.5, S.7 and S.9 of the Act (See State of Bihar v. Rajballav Prasad, 2016 KHC 6785 : AIR 2017 SC 630 : 2017 (2) SCC 178). True, a presumption in a criminal case can arise only when the prosecution has adduced the facts forming the foundation of the case. In the instant case, prima facie, there are sufficient materials to find the complicity of the petitioner in the crime.”
9. After bestowing my anxious consideration to
the facts, the rival submissions made across the Bar and the materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, there are prima facie materials to substantiate the petitioner’s involvement in the crime, the petitioner’s custodial interrogation is necessary, and that the medical examinations have to be conducted, I am not convinced that the petitioner has not made out any satisfactory grounds to invoke the discretionary jurisdiction of this Court under Sec.438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. Sd/- rmm/30/7/2024 C.S.DIAS, JUDGE