Sijo vs State Of Kerala

Ziyad Rahman, A.A, J

This is an application filed under Section 439 of the Code of Criminal Procedure seeking regular bail.

The petitioner is the accused in Crime No. 378/2023 of Anchuthengu Police Station. The offences alleged against the petitioner are punishable under Sections 366, 376(3) of the Indian Penal Code and Section 3(a) read with Section 4(3), 7 read with 8 of the Protection of Children from Sexual Offences Act.

The prosecution case is that, the petitioner had taken the victim, a girl aged 13 years, on 05.06.2023 from the legal custody of her parents, and thereafter had penetrative sexual assault on the victim. The crime was registered in such circumstances and as part of the investigation the petitioner was arrested on 09.06.2023. Since then, he has been under judicial detention. This application for regular bail is submitted in such circumstances.

Heard, Sri. Latheesh Sebastian, the learned counsel appearing for the petitioner and Smt. Nima Jacob, the learned Public Prosecutor, appearing for the State.

The specific contention put forward by the learned counsel for the petitioner is that, the petitioner and the defacto complainant were in a love affair and the sexual relationship was during the course of the same. The petitioner has been in judicial custody since 09.06.2023 and there is substantial progress in the investigation. Therefore, there is no purpose in keeping the petitioner under detention.

On the other hand, the learned Public Prosecutor opposes the said application by pointing out that, there are specific allegations against the petitioner as per the statement given by the defacto complainant. The matter is under investigation and therefore, dismissal of the application was sought.

I have gone through the records. From the materials placed on record, it is evident that the petitioner and the defacto complainant were in a relationship and this is admitted in the statement of the defacto complainant. The petitioner is a person aged just 20 years and there is no criminal antecedents as well. Of course it is true that, as the victim was a minor at the relevant time, her consent for sexual intercourse is not relevant as far as the offences are concerned. However, the question that is being considered by this Court is whether the incarceration of the petitioner is to be continued or not. While considering the said question, the factual circumstances under which the offences were committed including the relationship between the parties can be taken into consideration. Moreover, it is a fact that the petitioner has been in custody since 09.06.2023, and more than two months have elapsed.

In such circumstances, I do not find any necessity for further incarceration of the petitioner. Therefore, this 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 jurisdictional Court.

ii) The petitioner shall fully cooperate with the investigation.

iii) The petitioner shall appear before the Investigating Officer between 10.00 a.m and 11.00 a.m every Wednesday until the filing of the final report.

iv) The petitioner shall also appear before the Investigating Officer as and when required.

v) The petitioner shall not commit any offence of similar nature while on bail.

vi) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

vii) The petitioner shall not leave India without the permission of the trial Court.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with law.