Shameem @ Muhammed Shameem vs State Of Kerala And Anr

This Bail Application is filed under Section 439 of Criminal Procedure Code was heard through Video Conference.

Petitioner is the accused in Crime No.858 of 2020 of Perinthalmanna Police Station, Malappuram. The above case is registered against the petitioner alleging offences punishable under Sections 376(1), 506(1) and 363 IPC. The offences under Section 6 r/w. Section 5(j)(ii), Section 4 r/w. Section 3 of the Protection of Children from Sexual Offences Act (for short 'POCSO Act') is also alleged.

The prosecution case in brief is that on a day in March, 2020 during day time, the accused kidnapped the minor girl aged 16 years to the quarters in Malappuram without the consent and knowledge of the victim and committed rape on her. It is alleged that the petitioner committed rape on a promise that he will marry the victim girl. The further prosecution case is that the victim girl became pregnant and now she delivered a baby boy. The petitioner was arrested on 1.10.2020.

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

The counsel for the petitioner submitted that the victim girl voluntarily came along with the petitioner and he submitted that the allegation of rape is not correct. The counsel submitted that the petitioner is in custody from 1.10.2020. He is ready to abide any conditions, if this Court grant him bail.

The Public Prosecutor seriously opposed the bail application. The Public Prosecutor submitted that the petitioner sexually assaulted a minor girl. In such cases, the consent is not a matter to be considered by this Court. The Public Prosecutor submitted that the petitioner was arrested only on 1.10.2020.

After hearing both sides, I think this is not a fit case, in which the petitioner can be released on bail at this stage. The petitioner was arrested only on 1.10.2020. The allegation against the petitioner is very serious. The petitioner is aged 28 and the victim girl is aged 16. The victim girl became pregnant and she delivered a child. In such situation, there is no question of consent from the girl because she is a minor. I think the petitioner cannot be released on bail at this stage.

Moreover, the jurisdiction to grant bail has to be exercised on the well settled principles laid down by the Hon'ble Supreme Court in Chidambaram P v Central Bureau of Investigation (AIR 2019 SC 5272). The apex court held that, the following factors are to the taken into consideration while considering the application for bail.

(i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution;

(ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;

(iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence;

(iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused;

(v) larger interest of the public or the State and similar other considerations.

It is true that there is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be decided on the basis of the facts and circumstances of that case. In the light of the general principles laid down in the above judgment and considering the facts and circumstances of this case, I am of the opinion that this is not a fit case in which the petitioner can be released on bail. Hence this Bail Application is dismissed.