Siva G 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. 579/2022 of Vandanmedu Police Station, which was registered for the offences punishable under Sections 450, 363, 370 and 376 (2)(n) of the Indian Penal Code and under Section 4(1) read with Section 3(a) Section 6 read with 5(1) of POCSO Act.

The prosecution case is that, on 24.11.2020 at 2.30 p.m., the petitioner trespassed into the residence of the victim, aged 17 years at the relevant time, and had forceful sexual intercourse with her. Later, the accused enticed the defacto complainant and took her from the lawful guardianship of her parents to her brother's house at Thevaram in the State of Tamil Nadu, thereafter committed rape on her. The crime was registered in such circumstances. As part of the investigation, the petitioner was arrested on 23.08.2022, and since then, he has been under judicial detention. This application for regular bail is submitted in such circumstances.

Heard, Sri. Arundas K .S, the learned counsel appearing for the petitioner and Smt. Seetha. S, the learned Public Prosecutor, appearing for the State.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. According to him, the petitioner and the defacto complainant were in a love affair. It is further pointed out that the investigation in the case is already over, and the final report has been filed. Now the matter is pending before the Special Court for the trial of the offences under the POCSO Act, Kattappana, as S.C NO. 615/2022. It is further pointed out that the matter is settled between the parties, and the defacto complainant now attained the majority and has executed an affidavit indicating the settlement between the parties. The aforesaid affidavit is produced as Annexure-6. In such circumstances, further incarceration of the petitioner is not at all necessary, points out the learned counsel for the petitioner.

On the other hand, the learned Public Prosecutor would oppose the aforesaid application. It is pointed out that there are specific allegations against the petitioner and during the investigation, several materials could be collected by the investigating officer indicating the culpability of the accused. Now the matter is pending trial, and therefore if the petitioner is released on bail, he is likely to influence the witnesses.

I have gone through the records and heard the contentions raised from both sides. There are indeed allegations against the petitioner. However, the fact remains that the petitioner has been in custody since 23.08.2022. The investigation in this case is completed, the final report has been filed, and the matter is pending trial. Besides the same, the specific case of the learned counsel for the petitioner is that the petitioner and the defacto complainant are in a love affair. The existence of the relationship is evident from the statement of the victim itself. The affidavit of the victim produced as Annexure 6 also fortifies the aforesaid contention. When all the aforementioned aspects are taken into consideration and also considering the period of incarceration the petitioner had already undergone, I am of the view that the continuation of the judicial custody of the petitioner may not be necessary. The petitioner can be granted bail, by incorporating appropriate conditions.

In such circumstances, the 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 appear before the trial court as and when required.

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.

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.