Siraj N.K vs State Of Kerala

Ziyad Rahman A.A, J

This is an application filed u/s 439 of the Code of Criminal Procedure seeking regular bail.

The petitioner is the accused in Crime No.500/2022 of Poochakkal Police Station. The offences alleged against the petitioner are under Sections 376(2)(f), 376AB and 354(a)(1) of IPC, Section 4(2) read Section 3(e), 6(1) read with 5(m)(n)(e), 8 read with 7, 10 and read with 9(m)(n)(e) of POCSO Act and Section 75 of Juvenile Justice Act.

The prosecution case is that, the petitioner, the father of the victim, a girl aged three years, subject to the victim to penetrative sexual assault, on various occasions, thereby committed the offences. The crime was registered in such circumstances and as part of the investigation, the petitioner was arrested on 06.08.2022, and since then the petitioner has been under judicial custody. Even though the petitioner approached the Special Court on earlier occasions for bail, but the said applications were dismissed. This application for regular bail is submitted in such circumstances.

Head Sri.C.K. Anwar, the learned counsel for the petitioner and Smt.Seetha S., the learned Public Prosecutor. Even though notice of this bail application was furnished to the victim/de facto complainant, showing the posting date as 22.05.2023, there is no appearance for her when the matter is taken up.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. According to him, the petitioner was falsely implicated in the said case in view of the rivalry which his wife had against him. According to him, the wife of the petitioner/the mother of the victim was having an illicit affair with another person, and since the petitioner objected to the same, he was falsely implicated in the said case. It is also pointed out that she subsequently married the person with whom she had the relationship. It is further pointed out that a false complaint was submitted after tutoring the victim, only with the intention to avoid the petitioner, contends the learned counsel for the petitioner.

On the other hand, the learned Public Prosecutor would oppose the aforesaid application by pointing out that there are special allegations against the petitioner. The statement given by the victim contains the acts committed by the petitioner. The learned Public Prosecutor further submitted that in view of the fact that the petitioner is the father of the victim, if he is released on bail, he will influence the victim and thereby, prospects of the fair trial will be adversely affected. In such circumstances, the dismissal of the bail application was sought. The learned Public Prosecutor further submitted that the mother of the victim already remarried and is now living in Kondotty, Malappuram. The victim child is also in the custody of the mother.

I have gone through the records and heard the contentions of both sides. The specific contention put forward by the learned counsel for the petitioner is that he was falsely implicated at the instance of the mother of the victim. The reason for the false implication highlighted by the petitioner is that the petitioner questioned the relationship of the mother of the victim, with another person. It is the further submission of the learned counsel for the petitioner that, after the registration of the crime, the mother of the victim remarried. The learned Public Prosecutor, upon instruction confirmed the fact that the mother of the victim was remarried. From the statement of the victim, it can be seen that there are descriptions of specific instances of sexual assault. However, the learned counsel for the petitioner contends that, the same was a tutored one at the instance of the mother of the victim. In the light of the specific contention put forward by the learned counsel for the petitioner and also the other circumstances as revealed from the statement of the learned Public Prosecutor with regard to the remarriage of the mother of the victim, the contention put forward by the learned counsel cannot be brushed aside. However, as regards the allegations, it is a matter to be established during the course of trial. Now the petitioner has been in custody since 06.08.2022, and the final report is already submitted. Therefore, further detention of the petitioner appears to be not necessary in this case. However, the apprehension voiced by the Public Prosecutor cannot be simply brushed aside. Even while passing an order the release of the petitioner on bail, it should be ensured that he is not intimidating or influence the victim or other witnesses. It is evident from the submission of the learned Public Prosecutor that the victim is now along with the mother at Malappuram and the petitioner is a resident of Ernakulam. In such circumstances, the release of the petitioner can be ordered by incorporating appropriate conditions to ensure that the petitioner is not contacting the victim or the other witnesses. In the facts and circumstances of the case, I do not find any purpose in keeping the petitioner under detention any longer.

In the result, this application is allowed, and the petitioner is directed to be released on bail subject to 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 Magistrate/Court.

(ii) The petitioner shall also appear before the investigating officer as and when required by him.

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

(iv) 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.

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

(vi) The petitioner shall surrender his passport, if any, before the Jurisdictional Court. If he does not have a passport, an affidavit to that effect shall be submitted before the jurisdictional 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 the law.