Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 10TH DAY OF APRIL 2023 / 20TH CHAITHRA, 1945 CRL.A NO. 527 OF 2023 AGAINST THE ORDER/JUDGMENTSC 216/2023 OF FAST TRACK SPECIAL COURT, KOYILANDY APPELLANT/S:
AVINASH KM AGED 22 YEARS S/O RAVEENDRAN , KUNIYERIMEETHAL(H) ANNASSERI P.O, THALAKULATHUR, PIN - 673317 BY ADV SHARAN SHAHIER RESPONDENT/S: 1 STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682031 2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX R1 BY PUBLIC PROSECUTOR SMT BINDU THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2..
K.BABU, J.
-------------------------------------- Crl.Appeal No.527 of 2023 --------------------------------------- Dated this the 10th day of April, 2023
ORDER
This appeal is filed under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2015. The petitioner is accused No.1 in S.C.No.216 of 2023 on the file of the Fast Track Special Judge, Koyilandy. The offences alleged against the petitioner are punishable under Sections 376-D, 363, 366A and 328 of IPC, 3(2)(v), 3(2)(va) of SC/ST POA Amendment Act, 2015, Section 77 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and Sections 6 and 5g of the Protection of Children from Sexutal Offences Act, 2012.
2. The prosecution case is that in June, 2022, the
petitioner and the other accused took the defacto complainant to a bush and accused Nos. 2 and 3 made the ..3.. defacto complainant, aged 16 years, to consume liquour and committed gang rape on her. The petitioner was arrested on 28.12.2022 and he has been in judicial custody since then. The investigating agency submitted final report and the trial Court took cognizance of the offences as alleged. The Court below is now proceeding with the trial. The petitioner filed CMP No.86 of 2023 seeking regular bail. The trial Court rejected the application as per order dated 07.03.2023. The said
order is under challenge.
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner has been in judicial custody for the last 110 days and further incarceration of the petitioner is not required.
5. The Public Prosecutor opposed the bail plea of
the petitioner on the ground that the offences alleged are very grave and that the victim and her mother face threat ..4.. from the petitioner and the other accused in this case.
6. The relevant portion of the order impugned is extracted below:-
“7. The prosecution case is that all the 3 accused were actively involved in committing rape on the child. It is also alleged that A2 and A3 made the child to consume beer and thereafter A1 to A3 committed gang rape on the child. This petitioner was absconding and subsequently got surrendered in Chevayoor crime No.760/21. This petitioner was formally arrested from District Jail, Kozhikode on 20-12-2022. So there is tendency for this accused to abscond. Now A1 to A3 are available so as to proceed with the trial. In case bail is granted to this petitioner, who is the prime accused and he absconded, then that will prolong the trial. So on that ground this court is not inclined to grant bail to the petitioner.
8. As already mentioned earlier, the learned counsel
for the victim filed objection mentioning that the child and her mother is afraid of attack from the accused if they are released on bail. There was already a report filed in CMP 72/23 (bail application filed by A2) in which it was stated that several persons on behalf of accused approached victim with threat. It is also reported by the learned counsel for victim that the examination is ..5..
to be started for the child and releasing accused on bail will cause embarrassment for the child which will affect her education. More over, the presence of any of the accused will be a threat to child and relatives who are having not much protection. They will get intimidaed from giving evidence before the court in true manner. Normally victim as well as witnesses will be influenced or intimidated before their examination in the court during evidence. I find that this is a genuine case in which there is apprehension for the victim as well as her mother regarding intimidation and influence. Our State is not having any witness protection scheme. So in such serious cases it is easy to intimidate child and relatives. I find that accused is not entitled for bail at this stage.”
8. The Court below has taken note of the concern
of the victim and her mother that several persons on behalf of the accused apprao ched the victim with threat. The materials placed before the Court would reveal that the victim and the mother face persistent threat from the accused. This Court is of the view that this is a fit case which warrants custodial trial. ..6.. Having regard to the entire circumstances, the Crl. Appeal is dismissed. The trial Court is directed to complete the trial within a period of three months from this date. Sd/- K.BABU, JUDGE kkj ..7.. APPENDIX OF CRL.A 527/2023 PETITIONER ANNEXURES Annexure 1 A CERTIFIED COPY OF THE ORDER IN CMP TRACK SPECIAL JUDGE KOYILANDY