XXX vs State Of Kerala

Ziyad Rahman A. A. , J

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

The petitioner is the accused in Crime No.109 of 2021 of Bekal Police Station, which was registered for the offences punishable under Sections 5(l), 5(m) and 5(n) of the Protection of Children From Sexual Offences (POCSO) Act, 2012 and also under Section 376 AB of the Indian Penal Code.

The petitioner and the victim, now aged 14 years, are relatives. The allegation against the petitioner is that in the year 2016, while the victim was studying in the 3rd standard, the petitioner committed sexual assault upon her. On several occasions, such incidents were repeated, and later, on 28.02.2021, the petitioner caught hold of her hands. The crime was registered in such circumstances for the offences mentioned above. As the petitioner was working abroad, the investigation has been completed in this case, showing the petitioner as absconding and the final report is already filed before the jurisdictional court. Now the matter is pending before the Addl.Sessions Court-I, Kasaragod as S.C.No.497 of 2021.

Later, on 17.12.2022, when the petitioner reached his native place, he was arrested in connection with the aforesaid case, and since then, he has been under judicial custody. This application for regular bail is submitted in such circumstances.

Heard Sri.R.T.Pradeep, learned counsel for the petitioner, Sri.C.S.Hrithwik, learned Public Prosecutor for the State and Smt.Sindhu Shanthalingam, learned counsel for the de facto complainant/victim.

The learned counsel for the petitioner submits that the petitioner was falsely implicated in the said case on account of certain civil disputes between the parties. It is pointed out that the victim is the petitioner’s grandmother’s brother’s daughter. Earlier, the grandmother of the petitioner filed a civil suit for partition against one of her brothers, who was the eldest member of the family. While the matter was pending, the pathway leading to the petitioner's residence was blocked by him. In retaliation to the same, the pathway leading to the residence of the victim was also blocked. This resulted in certain physical altercations between the parties, and ultimately two crimes were registered in response to the incident. In one incident, the crime registered was against the brother of the grandmother of the petitioner, where the de facto complainant was the petitioner. The aforesaid crime was registered on 29.01.2021. The specific case put forward by the learned counsel for the petitioner is that FIR, in this case, was registered as a retaliation of the crime registered on 29.01.2021, and the date of the FIR registered in this case was on 03.02.2021, which is after four days. It is pointed out that, as the pathway leading to the residence of the victim was obstructed, they approached the Childline authorities by raising a complaint which ultimately resulted in the registration of the said crime. According to the learned counsel for the petitioner, the petitioner was falsely implicated, and no incident, as alleged in the complaint, has ever occurred.

On the other hand, the learned Public Prosecutor would oppose the aforesaid application. According to him, from the FIS and the statement of the victim recorded under Section 164 Cr.P.C., it is revealed that the petitioner committed the sexual atrocities. The learned Public Prosecutor hence sought dismissal of the bail application. Learned counsel for the victim stated that the complaint was submitted in connection with the disputes pending between the parties. Even though the victim has given the statement, it is pointed out that the victim and her family do not intend to pursue the complaint as against the petitioner herein.

I have gone through the records and heard the contentions raised by all the parties. From the sequence of events narrated by the learned counsel for the petitioner, it is evident that there are several disputes between the parties concerning the properties they have. In connection with the said disputes, certain criminal cases were also registered. The specific case of the petitioner is that the present complaint was submitted as a retaliation of the civil suit, and the FIR registered at the instance of the petitioner on 29.01.2021. The proximity between those crimes is specifically highlighted by the learned counsel for the petitioner to substantiate the same.

After considering the entire aspects, I am of the view that the aforesaid contentions cannot be simply brushed aside. This is mainly because the incident, which is the subject matter of the offences, allegedly occurred in the year 2016, and the complaint was submitted in the year 2021. Moreover, the learned counsel for the victim has specifically stated that they do not intend to proceed with the complaint further. The petitioner has been detained since 17.12.2022, and the final report has been submitted. In such circumstances, I do not find any necessity for the continued incarceration of the petitioner. He can be directed to be released, subject to appropriate conditions to ensure that he cooperates with the trial.

In such circumstances, this bail application is allowed, granting bail to the petitioner 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 each for the like sum to the satisfaction of the jurisdictional Court.

(ii) The petitioner shall also appear before the investigating officer 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 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 the law.