Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 31ST DAY OF JULY 2023 / 9TH SRAVANA, 1945 CRIME NO.481/2023 OF KOZHINJAMPARA POLICE STATION, PALAKKAD PETITIONER: XXX AGED 24 YEARS XXX, PIN - 678555 BY ADV V.A.VINOD RESPONDENT/STATE: 1 STATE OF KERALA RE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV • R1 BY ADV. C S HRITHWIK - SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
The petitioner is the accused in Crime No.481/2023 of Kozhinjampara Police Station, which was registered for the offences punishable under Sections 363, 376(2)(n) of IPC and under Section 4(1) read with Section 3(a) of POCSO Act.
2. The prosecution case is that, the petitioner sexually exploited the victim from 08.04.2021 to 09.04.2023, by making a
promise to marry her. The victim was aged 17 years and consequent to the sexual intercourse between the parties, the victim got impregnated. The crime was registered in such circumstances. As part of the investigation, the petitioner was arrested on 15.06.2023. Since then he has been under judicial detention. This application for regular bail is submitted in such circumstances.
3. Heard Sri.V.A.Vinod, learned counsel for the petitioner and Sri.C.S. Hrithwik, learned Public Prosecutor for the State.
4. The learned counsel for the petitioner submits that the
petitioner is innocent of all the allegations. According to him, the petitioner and the defacto complainant were in a relationship and they wanted to marry each other. After coming to know about the said relationship, the families of the petitioner as well as the defacto complainant, agreed for the said marriage and the betrothal ceremony was conducted on 10.09.2022 as well. Even though the marriage was scheduled to be conducted on 03.09.2023 ie. after the defacto complainant attains majority, the petitioner came to know about the relationship the defacto complainant was having with another person, and therefore, the petitioner’s family had withdrawn themselves from the proposal of the marriage. This led to certain disputes between the parties, and according to the petitioner, the
false complaint was submitted in such circumstances. Now the petitioner has been under judicial detention since 15.06.2023 and there is no purpose in keeping the petitioner under detention any further. The petitioner is ready and willing to cooperate with the investigation and shall abide by any conditions that may imposed by this Court, points out the learned counsel.
5. The learned Public Prosecutor, on the other hand,
opposes the said application by pointing out that several instances of penetrative sexual assaults are described in the statements given by the victim before the Police and before the learned Magistrate under Section 164 of Cr.P.C. At the relevant time, the victim was aged only 17 years and therefore, the offences are attracted. The dismissal of the application was sought in such circumstances.
6. I have gone through the records. From the materials
placed on record it is evident that, the parties were in a relationship and their engagement ceremony was also conducted. From the statements of the victim, it is evident that the sexual intercourse between the parties was based on mutual consent. However, it is a fact that, since the victim was aged only 17 years at the relevant time, the consent of the victim may not be relevant as far as the offences are concerned. However, the question before this Court in this proceedings is as to whether the petitioner is to be granted bail or not. In my view, for the said limited purpose, the said aspect is having some relevance. In this case, as pointed out by the learned counsel for the petitioner, the petitioner has been in judicial custody
since 15.06.2023. About two months have elapsed. In such circumstances, considering the period of detention the petitioner has undergone and the other relevant aspects as observed above, I am of the view that, further incarceration of the petitioner is not necessary. Therefore, this application is allowed and the petitioner is directed to be released on bail subject to the following conditions: i) The petitioner shall be released on bail on 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 jurisdictional Court.
ii) The petitioner shall fully cooperate with the investigation. iii) The petitioner shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m on every Wednesday until the filing of final report. iv) The petitioner shall appear before the Investigating Officer as and when required. v) The petitioner shall not commit any offence of similar nature while on bail. vi) The petitioner shall not make any attempt to contact any
of the prosecution witnesses, directly or through any other person, or any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. vii) The petitioner shall not leave India without the permission of the jurisdictional court. viii) The petitioner shall surrender his passport before the Jurisdictional court and, in case he does not have a passport, an affidavit to that effect shall be filed. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. Sd/- ZIYAD RAHMAN A.A. JUDGE scs