Akbar Sha @ Ashiq vs State Of Kerala

Dr Kauser Edappagath, J

This is an application filed u/s 438 of Code of Criminal Procedure seeking pre-arrest bail.

The petitioner is the accused in Crime No.51/2023 of Pallikkal Police Station, Thiruvananthapuram District. The offences alleged are punishable under Sections 363, 354A(1) (i), 354D, 379 of IPC and Section 12 r/w 11(iv) and (vi) of Protection of Children from Sexual Offences Act.

The prosecution case in short is that the petitioner and the victim became friends through Instagram while the latter was studying in 10th standard. Thereafter, on one day in the month of January, 2023 the victim contacted the petitioner and requested him to take her to the school where she was studying. Accordingly, the petitioner came near to the house of the victim on 14/01/2023 at about 1 PM and took her in his scooty to her school. It is alleged that on the way, the petitioner forced the victim to stay in a lodge with sexual intentions. Thereafter, the petitioner took away the mobile phone belonging to her and also took her gold ornaments and pledged the same in a private financial institution and thereby committed the offence.

Heard both sides and perused the case diary.

The learned counsel for the petitioner submitted that the petitioner is absolutely innocent and he has been falsely implicated in the present case. He further submitted that there are no materials to connect the petitioner with the alleged crime and hence he is entitled to get bail. The learned Public Prosecutor opposed the bail application. He contended that the alleged incident occurred as a part of the intentional criminal acts of the petitioner and if the petitioner is released on bail at this stage, it would affect the course of investigation.

I went through the FIS. In the FIS, there are absolutely no allegations to attract the ingredients of the offences alleged. The only allegation in the FIS is that the victim requested the petitioner to take her to her school and accordingly, the petitioner came to her home and took her to the school. It appears that thereafter the father of the victim filed a man missing complaint, and it was thereafter the present crime was registered. Even in the 164 statement, there are no allegations to attract the offences alleged. Considering the allegations levelled against the petitioner, the custodial interrogation of the petitioner does not appear to be necessary. For all these reasons, the petitioner is entitled to pre-arrest bail on conditions.

In the result, the application is allowed on the following conditions:-

(i) The petitioner shall be released on bail in the event of his arrest on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be.

(ii) The petitioner shall fully co-operate with the investigation, including subjecting himself to the deemed police custody for the purpose of discovery, if any, as and when demanded.

(iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m on every Saturday until further orders. The petitioner shall also appear before the investigating officer as and when required by him.

(iv) The petitioner shall not commit any offence of like nature while on bail.

(v) 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.

(vi) The petitioner shall not leave State of Kerala without the permission of the trial Court.

(vii) The application, if any, for deletion, modification of bail conditions or for cancellation of bail on the ground of violation of the bail conditions shall be filed at the jurisdictional court.