Akbar @ Akbar Ali Khan vs State Of Kerala

This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.

The petitioner is the accused in Crime No.1136 of 2020 of Medical College Police Station, Kozhikode. The above case is registered against the

petitioner and another alleging offences punishable under Sections 363, 354-B 370-A, 376-D of the IPC and Sections 4 r/w 3(a), 6 r/w 5(g), 8 r/w

Section 7 of the Protection of Children from Sexual Offences Act.

The prosecution case is that one day in March 2020, the accused No.1 kidnapped the victim girl aged 17 on his bike and then brought her to a flat at

Chevayur. From there, accused No.1 brought the victim to an unfinished house at Wayanad. Then accused No.2 who was arranged by A1 disrobbed

the victim and then hold her breast and sexually abused. It is also alleged that accused No.2 inserted his fingers into her vagina and taken out his

pennis and sexually abused. Hence it is alleged that the accused committed the offence. According to the prosecution, the victim became pregnant

also.

Heard the counsel for the petitioner and the learned Public Prosecutor.

The counsel for the petitioner submitted that even if the entire allegations are accepted, the offences are not attracted. According to the counsel, it

is the admitted case of the prosecution that the victim girl is voluntarily going with the first accused to Wayand. It is a further case of the victim girl

that she was taken to a house. The counsel submitted that in the first information statement there is no penetrative sexual assault alleged.

Subsequently, when the investigating officer changed, a new statement is obtained from the victim, just to see that serious offences are added in the

case. The counsel submitted that the petitioner is ready to abide any conditions if this Court grant him bail.

The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the allegations against the petitioner are very serious. The

Public Prosecutor submitted that even if the contention of the petitioner is accepted, the offence is attracted because, the victim in this case is a minor

girl. The Public Prosecutor submitted that this Court may not invoke the jurisdiction under Section 438 Cr.P.C in this case.

After hearing both sides, I think this is not a fit case in which orders under Section 438 Cr.P.C can be passed. At this stage, the counsel for the

petitioner submitted that the petitioner will surrender before the investigating officer and will co-operate with the investigation. Therefore, this bail

application is disposed of with the following directions.

The petitioner will surrender before the Investigating Officer within three weeks from today.

If the petitioner surrender before the Investigating Officer, the Investigating Officer can interrogate him. After interrogation if the petitioner is

arrested, he will be produced before the jurisdictional court on the same day.

At that stage, if any bail application is filed by the petitioner after giving prior notice to the Prosecutor concerned, the learned Magistrate will

consider the bail application preferably on the date of filing of the same itself.