Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 29TH DAY OF MAY 2023 / 8TH JYAISHTA, 1945 BAIL APPL. NO. 3620 OF 2023 CRIME NO.1028/2022 OF NADAKKAVU POLICE STATION PETITIONERS/ACCUSED NOS.1 & 3: 1 ABDUL AZEES AGED 33 YEARS S/O. MOIDEEN, KOTTOPADIKKAL HOUSE, KAREETTIPARAMBU, MANIPURAM P.O., THAMARASSERY, KOZHIKODE DISTRICT, PIN - 673572 2 HABBAS AGED 39 YEARS S/O. HAMEED, KALANKULANGARA HOUSE, PUTHOOR P.O., KODUVALLY, THAMARASSERY, KOZHIKODE DISTRICT, PIN - 673582 BY ADVS. MATHEW KURIAKOSE T.G.SUNIL (PERUMBAVOOR) J.KRISHNAKUMAR (ADOOR) C.N.PRAKASH MONI GEORGE SHAJI P.K. RESPONDENT/STATE: STATE OF KERALA (CRIME NO. 1028/2022 OF NADAKKAVU POLICE STATION) REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ADV C S HRITHWIK - SR PP. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :2 :
ORDER
Dated this the 29th day of May, 2023 This is an application for anticipatory bail.
2. The petitioners are accused Nos.1 and 2 in crime
No.1028/2022 of Nadakkavu Police Station, Kozhikode. The offences alleged against the petitioners are under Sections 363, 377, read with Section 34 of the Indian Penal Code and Sections 4 read with Section 3(c), 6 read with Sections 5(g)(I), 8 read with Section 7, 10 read with Section 9(I), 12 read with Section 11(iv) of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
3. The allegation against the petitioner is that, on
27.10.2023 at about 17:00 hours, the 1 st accused kidnapped the victim aged 15 years, from Kozhikode KSRTC Bust stand, took him to the quarters of the 1 st accused, where he was staying with two others. Thereafter, the victim was subjected to unnatural sex by the petitioners on various occasions. Thereafter, the child was taken into the custody of the Police on 02.11.2022. Later, the
:3 : child was entrusted with the custody of his uncle as the parents of the child were not available. Subsequently, the child made a statement before the Police on 01.12.2022, in which the sexual assault committed by the petitioners was mentioned and the crime was registered on the basis of the statement. This application for anticipatory bail is submitted by the petitioners in such circumstances as the petitioners apprehend arrest in connection with the investigation of the said case.
4. Heard Sri. Mathew Kuriakose, the learned counsel appearing for the petitioners and Sri. C.S. Hritwik, the learned Senior Public Prosecutor for the State.
5. The learned counsel for the petitioners submits that
they are innocent of all the allegations and were falsely implicated in the said case. It is pointed out that, infact, the victim himself left his home and the 1st accused had offered him shelter. The Police had taken the child in custody on 02.11.2022, and at that point of time, no allegation of sexual assault as against the petitioners was made by the victim. The statement happened to be made only 01.12.2022, which is after a period of one month from the date on which the child was taken into custody by the
:4 : Police and the crime was reported at the instance of the uncle of the victim. The learned counsel further points out that the petitioners are ready and willing to cooperate with the investigation and shall abide by any conditions that may be imposed by this Court.
6. On the other hand, the learned Public Prosecutor
would oppose the aforesaid contentions. It is pointed out that there are specific allegations of sexual assault committed upon the victim, a male child aged 15 years. The matter is now under investigation and if the release of the petitioners is ordered, it will cause serious prejudice to the investigation.
7. I have gone through the records, which includes the statement of the victim given before the Police and the statement under Section 164 Cr.P.C. In both statements there is clear description of the sexual assaults committed upon the victim by
the accused persons. The aforesaid allegations make out a prima facie case against the petitioners. Ofcourse, there is delay of about one month in reporting the matter to the Police. This was highlighted as one of the reasons by the learned counsel for the petitioner, affecting the veracity of allegations against the :5 :
petitioners. However, considering the tender age of the victim and the circumstances under which the offences were committed, I am of the view that the delay of one month by itself cannot be taken as a ground to suspect the veracity of the statement of the victim at this stage. It is a matter to be investigated and I do not think granting anticipatory bail to the petitioners is justifiable.
In such circumstances, I do not find any merit in this bail application, and it is dismissed, accordingly. Sd/- ZIYAD RAHMAN A.A. JUDGE ncd :6 : APPENDIX OF BAIL APPL. 3620/2023 PETITIONER ANNEXURES Annexure C TRUE COPY OF THE ORDER DATED 19.01.2023 IN CRL. M.C. NO. 14/2023 ON THE FILES OF THE HON'BLE ADDL. DISTRICT & SESSIONS COURT FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND CHILDREN, KOZHIKODE