XXX vs State Of Kerala

A.Badharudeen, J

This appeal arises out of order in Crl.M.P.No.3040 of 2022 dated 03.10.2022 on the file of the First Additional Sessions Judge, Thrissur. The appellant is the sole accused in the above case. The respondent is the State of Kerala represented by the learned Public Prosecutor.

Heard the learned counsel for the appellant as well as the learned Public Prosecutor. Though notice served upon the defacto complainant as mandated under Section 15A(3) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, she did not turn up.

In this matter, the prosecution alleges commission of offences punishable under Sections 363 and 354A(1)(i) of Indian Penal Code and Section 8 r/w 7 and 10 r/w 9(1) of the Protection of Children from Sexual Offences Act and Section 3(1)(w)(i), 3(2)(va) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 2015 (hereinafter referred as 'SC/ST Act' for short).

The prosecution case is that at 11.30 a.m. on 18.09.2022, while the victim, who belonged to Scheduled Caste community, was walking through Thiruvilwamala-Malesamangalam road, the appellant/ accused kidnapped the minor victim and taken her on the motorbike, ridden by him. While travelling so, the appellant/accused, who does not belong to Scheduled Caste or Scheduled Tribe community, committed sexual assault against the minor victim. On the above score, after registering the crime, the appellant was arrested on 22.09.2022 and he has been in custody.

The appellant filed bail application before the Special Judge under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and the same was dismissed, holding that, grant of bail would hamper the investigation.

While assailing the above order, it is submitted by the learned counsel for the petitioner that the petitioner is innocent. It is submitted that even though the occurrence was on 18.09.2022, the complaint was lodged only on 21.09.2022 and there is no proper explanation for the said delay.

It is submitted further that, the allegation of the prosecution to the effect that, the appellant, while he was riding along with the victim, on his motorcycle, had placed the right leg of the victim near to his leg with sexual favour is baseless. In fact, there was no intention for the appellant to do any sort of sexual assault to the victim and it was so happened, since it was difficult for the person to sit conveniently in the motorcycle where, a box was fitted on the right side.

It is argued by the learned counsel for the appellant that the entire case is on a mistaken notion. He also submitted that, since the investigation requiring the custody of the appellant is practically over and he has no criminal antecedents, he is liable to be released on bail and he shall be ready to obey any conditions imposed by this Court, as a pre-requisite to grant bail.

The learned Public Prosecutor zealously opposed bail on the submission that even prior to this occurrence also, the accused caught hold on the hand of the defacto complainant, with intention to have sexual favour, when the victim purchased articles from the shop of the accused and the same was objected. Thereafter, the appellant forcefully taken the victim on his motorcycle and during the journey, he had committed sexual assault. Therefore, the allegations are well made out. Therefore, the accused does not deserve bail.

In this case, very serious offences are alleged to be committed by the appellant and prima facie, the prosecution case is well established. However, it could be noticed that the appellant has been in custody from 22.09.2022 and the investigation in this case is substantially improved. No criminal antecedents also reported against the appellant.

Considering all these aspects, I am inclined to set aside the order and grant bail to the appellant/accused on conditions:

(i) The appellant/accused shall be released on bail on his executing bond for Rs.30,000/-(Rupees Thirty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Special Court concerned.

(ii) The appellant/accused shall not intimidate witnesses or tamper the evidence. He shall co- operate with the investigation and shall be available for interrogation as and when directed by the Investigating Officer.

(iii) The appellant/accused shall not leave the jurisdiction of the Special Court without prior permission of the court.

(iv) The appellant/accused shall not involve in any other offence during the currency of bail and any such event, if reported, or came to the notice of this court, the same shall be a reason to cancel the bail hereby granted.