Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 25TH DAY OF JANUARY 2023 / 5TH MAGHA, 1944 BAIL APPL. NO. 10627 OF 2022 [ CRIME NO.313/2022 OF THE MEPPAYUR POLICE STATION, KOZHIKODE DISTRICT] PETITIONER/ACCUSED: XXXXXXXXXX BY ADV BABU S. NAIR RESPONDENTS/STATE & COMPLAINANT: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER MEPPAYUR POLICE STATION, KOZHIKKODE DISTRICT PIN - 673524 BY ADV PUBLIC PROSECUTOR ADV SREEJA V - SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A. No.10627 of 22 -:2:-
ORDER
The petitioner is the accused in crime No.313/2022 of the Meppayur Police Station, registered for the offences punishable under Sections 377 of the Indian Penal Code
(IPC) and also under Sections 8,7,12,11(vi) of the Protection of Children from Sexual Offences Act (POSCO Act).
2. The victim boy is aged 17 years, and as per the prosecution case on 10.10.2022, the petitioner hugged the
victim. Later, the petitioner allegedly subjected the victim to sexual assault in such a manner as to constitute offences punishable under Section 377 of IPC. The crime was registered in such circumstances. This application is submitted by the petitioner seeking anticipatory bail.
3. The learned counsel for the petitioner contends that the petitioner was falsely implicated at the instance of Smt. Sabira who is a neighbour of the petitioner as well as the victim. It is contended that the petitioner is implicated B.A. No.10627 of 22 -:3:- because of the reason that certain disputes are pending between the petitioner and said Smt.Sabira in connection with a pathway.
4. On the other hand, the learned Public prosecutor
opposes the said application. It is pointed out that there are specific allegations of sexual assault in the statement given by the victim. Therefore, it is contended that releasing the petitioner by granting anticipatory bail at this stage would cause prejudice to the prosecution as he is likely to influence and intimidate the victim and other witnesses.
5. I have gone through the records and have heard the
contentions raised by either side. In the statement given by the victim, he clearly described the manner in which the sexual assault was made against him. On going through the specific instances referred to in the said statement, the case advanced by the petitioner appears to be not acceptable. Even though the petitioner raised a contention that it was on account of the enmity of one Smt. Sabira against the petitioner, there is nothing to show that the statement was given by the victim due to the same. In the bail application, the petitioner specifically referred to certain instances in
B.A. No.10627 of 22 -:4:- which the victim was allegedly caught peeping into the bathroom of one lady, and on another occasion, he was caught peeping into the girl's toilet. It is contended by the petitioner that, by taking advantage of the said incidents, Smt Sabira, instigated the petitioner to raise false allegations against the petitioner. However, apart from mere averments, no materials are forthcoming to indicate the happening of any such incidents.
6. After considering all the relevant aspects, including
the gravity of the offences and the nature of the statement given by the victim, I do not find this as a fit case in which the powers of this Court under Section 438 of Cr.P.C is to be invoked. When the materials disclose a prima facie case against the accused, and the allegations are of sexual assaults of serious nature, it may not be proper to grant
pre-arrest bail. This is particularly when the offence committed was on a minor boy, by a person aged 62 years. Now, the investigation of the case is going on, and if the petitioner is granted anticipatory bail at this stage, it is likely to affect the investigation adversely. In such circumstances, I do not find any merit in this B.A. No.10627 of 22 -:5:- bail application, and accordingly, it is dismissed. Sd/- ZIYAD RAHMAN A.A. JUDGE Raj. 25.01.2023.