Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS MONDAY, THE 5TH DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 BAIL APPL. NO. 4233 OF 2024 CRIME NO.46/2024 OF KALLAMBALAM POLICE STATION, THIRUVANANTHAPURAM PETITIONER/ACCUSED: YUSUF, AGED 37 YEARS S/O MOHAMMED KANNU,RESIDING AT: ALTHAF MANZIL, SWAMIYARKUNNU, PUTHUSSERIKUNNU, KARAVARAM VILLAGE, THIRUVANANTHAPURAM, PIN - 695605 BY ADVS. R.RAJESH (VARKALA) MANU RAMACHANDRAN M.KIRANLAL T.S.SARATH SAMEER M NAIR SAILAKSHMI MENON SMT.AKHILA B. RESPONDENT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT: SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: B.A. No.4233 of 2024 2 Dated this the 5th day of August, 2024
ORDER
The application is filed under Section 439 of the
Code of Criminal Procedure, 1973, by the sole accused in Crime No.46/2024 of the Kallambalam Police Station, Thiruvananthapuram, which is registered against him for allegedly committing the offences punishable under Sections 376, 376(A)(B), 376(2)(n), 376(3), 354(A)(i)(1), 450 and 506 of the Indian Penal Code and Sections 4 r/w Section 3(a), 3(b), 6 r/w Section 5 (l)(m), 8 r/w Section 7, and 10 r/w Section 9(l)(m) f the Protection of Children from Sexual Offences Act (in short, ‘the POCSO Act’),
2012. The petitioner was arrested and remanded to judicial custody on 11.01.2024.
2. The gist of the prosecution case is that; the accused is a neighbour of the victim, a minor girl now B.A. No.4233 of 2024 3
aged 13 years and studying in the 8th standard of AKMH School, Kudavoor. The victim is residing with her parents and grand mother. The victim used to play with the son of the accused in their house. One day, while the victim was studying in the fourth standard, she went to the accused's house to collect toys. Then, the accused called the victim to his room, closed the door, forcefully shut
her mouth, stripped her clothes, and committed
penetrative sexual assault on her. The accused threatened the victim that he would kill her if she revealed the incident to anyone. Scared by the threat of the accused, the victim kept quiet. A week later, the accused again committed a similar act on the victim. Thereafter, he repeatedly committed penetrative sexual assault on the victim till she reached the sixth standard. Thereafter, the victim was scared to go to the house of the accused. The accused also threatened that he would publish the nude pictures of the victim in the social media. On 28.12.2023, at around 23:00 hours, the
B.A. No.4233 of 2024 4
accused peeped through the window of the victim’s house, called her near the window, groped her breasts, and fingered her genitals. Again the accused threatened the victim not to reveal the incident to any person. But, the victim suffered a urinary infection and was taken to the SAT Hospital, Thiruvananthapuram. During her examination, she revealed the above incidents. It was then that the matter was known, and the crime was registered. Thus, the accused has committed the above offences.
3. Heard; Sri. Rajesh. R, the learned counsel appearing for the petitioner and Smt.Seetha. S., the learned Senior Public Prosecutor.
4. The learned counsel appearing for the
petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of the First Information Report as well as the 164 statement of the victim would undoubtedly establish that the allegations are vague and fabricated. In fact, the B.A. No.4233 of 2024 5 petitioner's marriage with his wife is strained. The petitioner had issued a notice pronouncing talaq to his wife on 26.12.2023. Even though an intimation of the postal cover was given to his wife, she refused to collect
the postal article. Immediately, thereafter, the petitioner’s wife made the victim lodge the present complaint, and the FIR was registered on 11.01.2024, which by itself proves that the entire sequence of events are fabricated. There are matrimonial litigations between the petitioner and his wife, and the petitioner's son is in his custody and his daughter is in the custody of his wife. It is only for the purpose of creating a defence in the matrimonial proceedings that the present crime is
registered. A reading of the medical records substantiates that the victim has not suffered any penetrative injury, as alleged by the prosecution. The petitioner has been in judicial custody for the last 217 days, the investigation in the case is complete, the medical examinations have been completed, and the final B.A. No.4233 of 2024 6 report has been laid in May, 2024. The petitioner is the sole breadwinner of his family. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.
5. The learned Public Prosecutor opposed the
application. The Investigating Officer has filed a bail objection report, inter alia, contending that there are incriminating materials to substantiate the petitioner's involvement in the crime. The fact that the crime has been registered as per the information given by the doctor of the hospital proves there is no frivolity in the crime as alleged by the petitioner. The petitioner has repeatedly committed penetrative sexual assault on the victim, and the same can be borne out from the medical records. The petitioner has committed heinous offences. In view of Section 29 of the POCSO Act, the presumption of innocence cannot be drawn in favour of the petitioner. If the petitioner is enlarged on bail, there is every likelihood of him intimidating the victim and the
B.A. No.4233 of 2024 7 witnesses and tampering with evidence, which would be prejudicial to the prosecution. Hence, the application may be dismissed.
6. On an evaluation of the materials on record, it
can be gathered that the prosecution case is that about four years back, the petitioner had committed penetrative sexual assault on the victim on numerous occasions. The incident that has triggered the
registration of the present crime occurred on 28.12.2023. It is stated that the petitioner went to the house of the victim at mid-night, called the victim to the window, and groped the breasts and fingered the genitals of the victim. Subsequently, the victim suffered a urinary infection and was taken to the SAT Hospital, where she revealed to the doctor about the incident that occurred on 28.12.2023. Accordingly, the FIR was registered.
7. On a perusal of Annexure A5 unclaimed postal cover and its contents, it is evident that the petitioner B.A. No.4233 of 2024 8
has a strained relationship with his wife. The petitioner had issued talaq nama against his wife on 26.12.2023, the intimation on the said cover was given to the petitioner's wife on 04.01.2024. Admittedly, the present crime was registered on 11.01.2024, i.e., a week after the receipt of the intimation of Annexure A4. The petitioner and the victim are immediate neighbours. The alleged incidents of penetrative sexual assault span over four years, and it was only on 11.01.2024 that the victim made the allegation against the petitioner.
8. On a prima facie scrutiny of the medico-legal
examination report of the victim, dated 10.01.2024, it is reported that the victim’s hymen is not intact. There is no observation that the hymen is ruptured, though that is not necessary to attract the offence under Section 376(3) of the Indian Penal Code. However, all these matters have to be ultimately decided after trial. The fact remains that the petitioner has been in judicial custody since 11.01.2024, which is more than 217 days, the B.A. No.4233 of 2024 9 investigation in the case is complete, medical examinations of the victim and the petitioner have been conducted, and the final report has been laid in May,
2024. Moreover, the petitioner does not have any
criminal antecedents. There are a cloud leading to the registration of the crime. Again, that is a matter to be decided after the trial. The presumption of innocence is not available to the petitioner in view of Section 29 of the POCSO Act. Nonetheless, I am of the firm view that the petitioner's further detention is not necessary.
9. In Dataram Singh v. State of U.P., [(2018) 3
SCC 22] the Honourable Supreme Court observed that grant of bail is the rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner.
10. In State of Kerala v. Raneef, [(2011) 1 SCC B.A. No.4233 of 2024 10 784], the Honourable Supreme Court has declared that
undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to
infringement of their right to life guaranteed under Article 21 of the Constitution.
11. In Hussainara Khatoon (I) v. Home Secy.,
State of Bihar [(1980) 1 SCC 81], the Honourable Supreme Court while dealing with a case of under trials, who suffered long incarceration, held that the procedure that keeps large number of people behind the bars without trial for long is unreasonable and unfair, and is not in conformity with the mandate of Article 21 of the Constitution of India.
12. The principle that bail is the rule and jail is an
exception is on the touch stone of Article 21 of the Constitution of India. Once the charge sheet is filed, a strong case has to be made out for continuing a person in judicial custody. The right to bail cannot be denied B.A. No.4233 of 2024 11 merely due to the sentiments of the society.
13. After bestowing my anxious consideration to the
facts, the rival submissions made across the Bar, and the materials placed on record, particularly after going through the sequence of evidence referred to above, that the petitioner has been in judicial custody since
11.01.2024, that the investigation in the case is complete, that the final report has been laid, and that the petitioner does not have any criminal antecedents, I am of the firm view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions.
In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:
(i) The petitioner shall appear before the B.A. No.4233 of 2024 12 Investigating Officer on every alternate Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.46/2024.
(ii) The petitioner shall not directly or indirectly
make any inducement or threat to the victim or her witnesses or to any person acquainted with the facts of the case, so as to dissuade them from disclosing such
facts to the court or to any Police Officer, or tamper with
the evidence in any manner, whatsoever;
(iii) The petitioner shall not commit any offence while he is on bail;
(iv) The petitioner shall surrender his passport, if
any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; B.A. No.4233 of 2024 13
(v) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thiruvananthapuram, without the previous permission of the jurisdictional court;
(vi) In case of violation of any of the conditions
mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.
(vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) Needless to mention, it would be well within
the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the B.A. No.4233 of 2024 14 petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].
(ix) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. SD/- C.S.DIAS, JUDGE mtk/05.08.24