Harun Khan vs State Of Kerala

Dr. Kauser Edappagath, J

This is an application for regular bail filed by the 2nd accused in SC No.683/2020 on the file of the Additional Sessions Judge, Ernakulam (For the

Trial of Cases Relating to Atrocities and Sexual Violence Against Women and Children) u/s 439 of Cr.P.C.

The offences alleged are under S.376(2)(n), 376D, 376DA, 366A, 120B, 506 of IPC and S.5(g) (l),(j)(ii) r/w 6 of the POCSO Act.

The prosecution case in short is that the petitioner along with the remaining accused conspired together to commit rape on the victim minor girl aged

only 14 years and from March, 2020 to July, 2020, sexually exploited and committed rape on the victim several times at the house of the victim, at the

house of the accused and also at several other places and the victim became pregnant consequent to the commission of rape 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.

The case records would show that altogether there are six accused. Only four out of them were apprehended and final report was filed against

them only. The petitioner is the second accused. The petitioner along with the other accused were residing in the rented house situated opposite to the

house where the victim was residing. The victim resides along with her grand parents, brother and sister. The father of the victim is employed at Delhi

and her mother is no more. A reading of FI statement as well as 164 statement of the victim would show that she developed contact with the accused

being neighbours and as invited by them, she visited their house several times at midnight and some of them also visited her house as well and she was

sexually exploited. The alleged sexual acts had been taken place several times, according to the victim. However, there is no allegation that all the

accused persons or few of them together committed rape on her so as to constitute gang rape. The alleged acts of rape were committed by different

accused on different dates at different occasions. A perusal of the FI Statement and 164 statement would further show that the main allegation is

against the first accused and the third accused. According to the victim, it was the first accused who first contacted her over phone, developed

intimacy with her and offered her a sim card. The said relationship developed further and she later on acquainted with the remaining accused. The

name of the petitioner is Harun Khan. However, both in FI Statement and in 164 statement, victim refers his name as “Arunâ€​.

The petitioner was arrested on 5/9/2020 and since then, he is in custody. As already stated, final report has been filed. When this bail application

came up for hearing, this Court called for a report from the learned Judge of Additional Sessions Court, Ernakulam (For the Trial of Cases Relating to

Atrocities and Sexual Violence Against Women and Children) as to the stage of the case. The learned Judge reported that the material objects

involved in the case were forwarded to the Forensic Science Lab, Thiruvananthapuram for examination and report and the report has not been

received so far. The learned Judge further reported that there are about 60 witnesses cited by the prosecution including the witnesses from Uttar

Pradesh and Himachal Pradesh. The report further state that the trial of the case cannot be started without getting the report from the Forensic

Science Laboratory and the trial could be commenced within two months after getting the report and it may take six months to complete the trial.

Thus, there is no possibility for concluding the trial in the near future. Even in the case of special legislations like Terrorists and Disruptive Activities

(Prevention) Act, 1987 or the NDPS Act, 1985, which have somewhat rigorous conditions for grant of bail, the Supreme Court inP aramjit Singh v.

State (NCT of Delhi) [(1999) 9 SCC 252], Babba Alias Shankar Raghuman Rohida v. State of Maharashtra [(2005) 11 SCC 569) and Umarmia

Alias Mamumia v. State of Gujarat [(2017) 2 SCC 731] enlarged the accused on bail when they have been in jail for extended period of time with

little possibility of early completion of trial. Recently, the Supreme Court in Union of India v. K.A.Najeeb (Crl.Appeal No.98/2021), decided on

01/02/2021, enlarged the accused on bail involved in offence under UAP Act notwithstanding the bar u/s 43D(5) on the ground that there is no

likelihood of trial being completed within a reasonable time. The petitioner has no criminal antecedents. Considering the fact that the name of the

petitioner was not correctly stated by the victim either in the FIS or in the 164 statement, the complicity of the petitioner in the crime as well as the

report of the trial court that there is no likelihood of completing the trial in the near future and also considering the period of detention undergone by the

petitioner, I am of the view that the petitioner can be released on bail on stringent conditions.

In the result, bail application is allowed on 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 for the like sum each to the

satisfaction of the trial court.

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

(iii) The petitioner shall not make any attempt to contact victim or 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.

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

(v) The petitioner shall surrender his passport before the trial court. If he does not have a passport, he shall file an affidavit to that effect.

(vi) The petitioner shall not enter within a radius of 10 kms of the residence of the victim.