XXX vs State Of Kerala

Bechu Kurian Thomas, J

This is an application seeking regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioner is the accused in Crime No.284 of 2022 of Kareelakulangara Police Station, which is now pending consideration as S.C.No.1040/2022 on the files of the Fast Track Special Court, Haripad. The offences alleged against the petitioner in the said case are under Sections 363, 366, 376, 354, 354-A(1)(i), 354-D(2) and 354B of the Indian Penal Code, 1860.

The prosecution allegations in the present case is that the accused had kidnapped the victim, aged 16 years from the custody of her parents and raped her and thereby committed the offences alleged.

Petitioner was granted bail by this Court on 14.10.2022, in which one of the conditions imposed was that petitioner shall not commit similar offences while he is on bail. Yet another condition specified that petitioner shall not intimidate or attempt to influence the witnesses.

After petitioner was released on bail, another case was registered as Crime No.58/2023 against the petitioner on the basis of the complaint filed by the father of the very same victim. According to the said complaint, on 05.02.2023, the accused had repeatedly and continuously contacted the victim through her phone and later kidnapped her by enticing her from the legal guardianship and also committed sexual harassment on the child and committed the offences alleged.

The prosecution further alleges that since the conditions imposed while granting bail to the petitioner in Crime No.284/2022 was violated, the bail ought to be cancelled. Based upon the said application of the Investigating Officer, the Fast Track Special Court, Haripad, cancelled the bail granted to the petitioner by order dated 15.03.2023 in C.M.P.No.212/2023.

Sri.Ayyappan Sankar, learned Counsel for the petitioner contended that the allegations raised by the Investigating Officer are without any basis and petitioner is totally innocent. According to him, the victim had come over to his house and despite petitioner’s repeated requests to her to return back, she refused to do so and immediately thereafter, petitioner himself went to the Police Station and intimated the factum of the victim approaching. Thereafter, when the victim refused to go with her parents, the Police directed her to a shelter home. It was also submitted that the evidence clearly indicated that the petitioner had not sexually or physically harassed or abused the child and therefore, no offence of any nature is committed by him. According to the learned Counsel, the cancellation of bail is totally without any basis and that the long period of detention already undergone itself is a ground to release the petitioner on bail

Smt.V.Sreeja, learned Public Prosecutor on the other hand contended that the two conditions imposed by this Court while granting bail to the petitioner was infringed upon him, since he had repeatedly contacted the victim. It was also submitted that by committing the offence in Crime No.58/2023, petitioner has violated the conditions imposed in the bail order.

I have considered the rival contentions.

On a persual of the remand report produced, the Investigating Officer himself has stated that the accused had not physically or mentally harmed or abused the victim. It was further noticed from the remand report that petitioner and the victim had appeared before the Kanakakkunnu Police Station on 09.02.2023.

Having regard to the above statements in the remand reort, I am of the view that the contentions of the petitioner that the victim had on her own volition came to the house of the petitioner cannot be brushed aside.

In the light of the above statement in the remand report as well as the medical evidence as seen from the certificate issued by the Medical Officer on 10.02.2023, I am of the view that petitioner is entitled to be set at liberty forthwith, especially since petitioner has been in custody since 09.02.2023.

In the result, this application is allowed on the following conditions:-

(a) Petitioner shall be released on bail on him executing a bond for  Rs.50,000/-  (Rupees  fifty  thousand  only)  with  two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

(b) Petitioner shall appear before the Investigating Officer as and when required.

(c) Petitioner shall not contact the victim under any circumstances.

(d) Petitioner shall participate in the trial without fail.

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