Jafer Ali vs State Of Kerala

Gopinath P., J

Petitioner is the sole accused in Crime No.723 of 2023 of Kottakkal Police Station, Malappuram District, alleging commission of offences under Sections 354A(1) (ii), 377, 376(2)(n), 376(2)(f), 506(i) of the Indian Penal Code and offences under Sections 4(i) r/w Sections 3(a)/(b), 6(i) r/w 5(1)(m) (n), 8 r/w Sections 7, 10 r/w 9(1)(m)(n) of the POCSO Act and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The allegation against the petitioner is that sometime in the month of November 2019 and immediately thereafter, the petitioner sexually assaulted his minor daughter and also had committed penetrative sexual assault on her.

Learned counsel appearing for the petitioner would submit that there is absolutely no truth in the allegations raised against the petitioner. It is submitted that the petitioner is suffering from bipolar disease. It is submitted that the father of the petitioner had therefore, gifted a house and a property in the name of the petitioner's wife, intending that the petitioner's wife will take care of the petitioner. It is submitted that the wife of the petitioner had contracted another marriage under the Special Marriage Act, 1954 on 14.11.2021, as is evident from Annexure A1. It is submitted that the petitioner came to know of the marriage only in the year 2023. It is submitted that there are proceedings pending before the Family Court for divorce and also guardianship of the minor children. It is submitted that false complaint has been registered against the petitioner only to bolster the case of the petitioner's wife for divorce and for guardianship. It is submitted that there has been no occasion, whatsoever, for the petitioner to sexually assault his minor daughter.

The learned Public Prosecutor refers to the facts of the case as also to the statement given by the minor victim under Section 164 of the Cr.P.C. It is submitted that the statement recorded by the learned Magistrate under Section 164 of the Cr.P.C. will show that according to the minor victim, she had been subjected to sexual assault, including penetrative sexual assault by the petitioner. It is submitted that the investigation has already been completed and a final report has already been filed in the mater and the matter is now ending as S.C.No.873 of 2023 on the file of the Special Court, Manjeri. Learned Public Prosecutor also submits that since an offence under Section 376 (AB) had been involved, this Court had directed the issuance of notice to the minor victim and a notice of this bail application has been served on the minor victim on 03.09.2023, showing the date of posting as 05.09.2023.

Learned counsel for the petitioner submits that the petitioner has been in custody from 15.06.2023 and since the investigation has been completed and final report has been filed, it is not necessary to continue the petitioner under custody.

Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the view that the petitioner can be granted bail as the petitioner has been custody from 15.06.2023. The investigation has been completed and a final report has already been filed. The fact that there are matrimonial disputes between the petitioner and his wife also suggest that there may possibly be some truth in the contention taken on behalf of the petitioner that he has been falsely implicated in the case. Therefore, I am of the view that the petitioner can be directed to be released on bail subject to the following conditions:

(i) The petitioner shall execute a bond for a sum of Rs.50,000/- (Rupees fifty thousand 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.723/2023 of Kottakkal Police Station on every Saturday at 11 a.m until further orders.

(iii) The petitioner shall not enter the local limits of the Kottakkal Police Station where the defacto complainant is residing except for the purpose of complying with condition No.(ii) above.

(iv) The petitioner shall not influence or intimidate the victim or any witness in Crime No. 723/2023 of Kottakkal Police Station;

(iv) The petitioner shall not involve in any other crime while on bail.

(v) The petitioner shall not contact the victim in any manner.

It is made clear that the observations in this order are only for the purpose of considering the entitlement of the petitioner for bail and shall not be treated as any finding by this Court on the merits of the matter. If any of the aforesaid conditions are violated, the Investigating officer in Crime No. 723/2023 of Kottakkal Police Station may file an application before the jurisdictional Court for cancellation of bail.