Joseph @ Shinu vs State Of Kerala

A. Badharudeen, J

This is an appeal filed under Section 14-A of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as `SC/ST Act' for short) and the appellant is the sole accused in Crime No.758 of 2022 of Kuthiathod Police Station. Respondents are the State of Kerala as well as the defacto complainant.

In this matter though notice was served upon the defacto complainant, as submitted by the learned Public Prosecutor, the defacto complainant did not appear.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

The prosecution allegation is that at 4 p.m on 04.09.2022, the appellant/accused, who is not a member of Scheduled Caste or Scheduled Tribe community, trespassed into the house of the 2nd respondent/defacto complainant, aged 13 years, who is a member of Scheduled Caste community and subjected the defacto complainant to sexual assault by inserting his hand inside her pants and under garments. This is the basis on which the prosecution alleges commission of offences punishable under Sections 354, 448 of Indian Penal Code, Section 10 r/w 9(m) of Protection of Children from Sexual Offences Act and Section 3(1) (w)(i), 3(2)(va) of SC/ST Act.

It is submitted by the learned counsel for the accused that the accused has been in custody from 17.09.2022 and he has no criminal antecedents. It is argued further that though the occurrence was on 04.09.2022, the complaint was lodged only on 15.09.2022 and, therefore, there is inordinate delay in filing the F.I.S. The learned counsel for the accused argued further that since the further custody of the petitioner for the purpose of investigation is not required, the petitioner is liable to be released on bail and the petitioner is ready to abide by any conditions as a pre-requisite for granting bail.

The learned Public Prosecutor produced the relevant pages of the case diary and submitted that a minor girl, aged 13 years, was subjected to sexual assault with criminal intention to quench his thirst of libido and the prosecution case is well made out and in such a case release of the accused on bail would stall the investigation. However, the learned Public Prosecutor not pointed out any criminal antecedents in so far as the petitioner is concerned.

He also argued that the delay in lodging the F.I.S also was explained properly.

In this matter, it is true that there is delay in lodging the F.I.S, for which there is explanation also. Going by the entire prosecution allegations, there is no reason to hold that the prosecution allegations are false and there are sufficient materials to hold prima facie that the prosecution case is well established.

In this matter though the allegations are serious, since the petitioner has no criminal antecedents and the investigation is practically over, as could be gathered from the report of the Investigating Officer, the further detention of the petitioner in custody is not warranted. Therefore, the order impugned is liable to be set aside and the accused is liable to be released on bail on the following conditions.

i. The petitioner shall be released on bail on his executing a bond for Rs.50,000/- (Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the jurisdictional court concerned.

ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial.

iii. The petitioner shall not leave the jurisdiction without prior permission of the trial court.

iv. The petitioner shall surrender his passport, if any, within 7 days from the date of his release, before the trial court. If he has no passport, he shall file an affidavit in this regard on the date of execution   of   the   bond   or   within   3   days   thereafter. v. The petitioner shall not involve in any other offence and shall not disturb the victim or her relatives in any manner, during the currency of bail and any such event, if reported, or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted.