Mubasher vs State of Kerala

Type Court Judgment Court Kerala Decided Apr 04, 2022

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Citation: sooperkanoon.com/1444874
Court: Kerala High Court
Judge: Honourable Mr. Justice Gopinath P.
Decided On: Apr 04, 2022
Case Number: Bail Appl./605/2022

Parties & Advocates

Appellant / Petitioner

Mubasher

Respondent

State of Kerala

Excerpt

..... 5. the learned public prosecutor opposes the grant of bail. it is submitted that the question as to whether thepetitioner and the victim girl had a consensual relationship does not arise for consideration in this case on account of the fact that the victim is a minor and the petitioner is aged 22. it issubmitted that the supreme court has in a recent judgmenttaken the view that in cases involving commission of offences under the pocso act, the question as to whether the petitioner and the victim were in a relationship should not weigh with the court in considering the grant of bail. it is submitted that the final report has already been filed in the matter and is now pending as sc.392/2021 before the additional district and sessions court kasargod. learned public prosecutor also points out that the medical examination report of the victim supports the allegations raised against the petitioner.6. having regard to the facts and circumstances of thecase and considering the fact that the petitioner has been in custody from 17-09-2021 and since the continued detention is not necessary of the purposes of investigation as a final report has already been filed in the matter, i am of the opinion that the petitioner can be granted bail subject to strict conditions. in the result this bail application is allowed. it is b.a.no.605/2022 4 directed that the petitioner shall be released on bail, subject to the following conditions:-(i) the petitioner shall execute a bond for a sum of 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 report before the investigating officer in crime no.446/2020 of bedakam police station, kasargod district on every saturday at 11 a.m until further orders;(iii) the petitioner shall not attempt to interfere with the investigation, influence or intimidate the victim or any witness in crime no.446/2020 of bedakam police station,.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. MONDAY, THE 4TH DAY OF APRIL 2022 / 14TH CHAITHRA, 1944 BAIL APPL. NO. 605 OF 2022 AGAINST THE ORDER/JUDGMENT IN Crl.M.Appl 3047/2021 IN SC 392/2021 OF SPECIAL COURT UNDER POCSO ACT, KASARAGOD CRIME NO.446/2020 OF BEDAKAM POLICE STATION, KASARGOD DISTRICT PETITIONER/ACCUSED: MUBASHER AGED 22 YEARS, S/O.MUHAMMED RAFEEK, CHEDEKKUND, KUNDAMKUZHY POST, KASARAGOD. BY ADV R.UMASANKAR

RESPONDENT/COMPLAINANT & INFORMANT/VICTIM: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 XX XX OTHER PRESENT: SRI. T.R .RENJITH SR P P THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.605/2022 2

ORDER

This is an application for regular bail

2. The petitioner is the sole accused in Crime

No.446/2020 of Bedakam Police Station, Kasargod District alleging commission of offences punishable under Sections 376(2)(n), 376 (3) of the Indian Penal Code and under Sections 4(2), r/w 3, 6(1), r/w 5(I), 12 r/w 11(v) of Protection of Children from Sexual Offences Act, 2012.

3. The allegation against the petitioner is that 26-07- 2020 and later on 22-09-2020, the petitioner committed rape on the alleged victim (who is aged 15 years).

4. The learned counsel appearing for the petitioner

submits that the petitioner was arrested on 17-09-2021 and has been in custody since. It is submitted that the petitioner and the victim were admittedly in a relationship. It is submitted that the the victim girl was forced to give a statement against the petitioner by her parents to ensure that the petitioner does not continue relationship with the victim girl. It is submitted that the entire story of rape has been cooked up at the instance of the

parents and the relatives of the victim girl. It is submitted that there is substantial delay in lodging the First Information Report.

B.A.No.605/2022                        3
        5.     The learned Public Prosecutor opposes the grant of
bail.        It is submitted that the question as to whether the

petitioner and the victim girl had a consensual relationship does not arise for consideration in this case on account of the fact that the victim is a minor and the petitioner is aged 22. It is

submitted that the Supreme Court has in a recent judgment

taken the view that in cases involving commission of offences under the POCSO Act, the question as to whether the petitioner and the victim were in a relationship should not weigh with the Court in considering the grant of bail. It is submitted that the final report has already been filed in the matter and is now pending as SC.392/2021 before the Additional District and Sessions Court Kasargod. Learned Public Prosecutor also points out that the medical examination report of the victim supports the allegations raised against the petitioner.

6. Having regard to the facts and circumstances of the

case and considering the fact that the petitioner has been in custody from 17-09-2021 and since the continued detention is not necessary of the purposes of investigation as a final report has already been filed in the matter, I am of the opinion that the petitioner can be granted bail subject to strict conditions. In the result this bail application is allowed. It is B.A.No.605/2022 4 directed that the petitioner shall be released on bail, subject to the following conditions:-

(i) The petitioner shall execute a bond for a sum of 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 report before the Investigating officer in Crime No.446/2020 of Bedakam Police Station, Kasargod District on every Saturday at 11 a.m until further orders;

(iii) The petitioner shall not attempt to interfere with the investigation, influence or intimidate the victim or any witness in Crime No.446/2020 of Bedakam Police Station, Kasargod District;

(iv) The petitioner shall not enter the local limits of Kolathur Panchayath, Kasargod District except for the purpose of complying with condition No.(ii) above;

(v) The petitioner shall surrender his passport before the

jurisdictional Court. If the petitioner does not have a passport, he shall execute an affidavit to that effect and file the same before the jurisdictional court within seven days of release on bail B.A.No.605/2022 5

(vi) The petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the

Investigating officer in Crime No.446/2020 of Bedakam Police Station, Kasargod District may file an application before the jurisdictional Court for cancellation of bail. Sd/- GOPINATH P. JUDGE ats.

Same Court & Year Kerala · 2022 Same Parties Mubasher vs State of Kerala Same Judge Honourable Mr. Justice Gopinath P.