XXX 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.753 of 2023 of Pothencode Police Station. The offences alleged against the petitioner are under Sections 342, 354A (1)(i), 354A(2), 376(2)(n) r/w 506 IPC.

The prosecution case is that, on 06.03.2023, the petitioner knocked at the window of the de facto complainant and took her to his house. The petitioner allegedly caught hold of the breast of the de facto complainant/victim, who is a girl aged 19 years, inserted his finger into her private parts and had oral sex as well. Similar incidents occurred on several occasions, even before the said incident. The crime was registered, when the uncle of the victim happened to see the victim coming from the house of the petitioner herein, and upon questioning her, she revealed about the same. As part of the investigation, the petitioner was arrested on 02.05.2023, and since then, the petitioner has been under judicial detention. This application for regular bail is submitted in such circumstances.

Heard Sri.Shajin S.Hameed, learned counsel for the petitioner and Sri.C.S.Hrithwik, learned Public Prosecutor for the State.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. According to him, the materials available on record are not sufficient to attract any of the offences alleged against the petitioner. Besides the same, it is also contended that the sexual acts were committed upon mutual consent, and the victim was a major at the relevant time. It is also pointed out that at the instance of the very same victim, crime No.754 of 2023 has been registered with similar allegations against the brother of the petitioner as well. Now the petitioner has been in custody for more than 50 days.

On the other hand, the learned Public Prosecutor would oppose the aforesaid allegation. It is pointed out that in the statement of the victim, there are specific allegations against the petitioner. The matter is now under investigation, and therefore, dismissal of the bail application is sought by the learned Public Prosecutor.

I have gone through the records and heard the contentions raised by both sides. There are indeed certain allegations against the petitioner when going through the contents of the statements given by the victim before the police and the learned Magistrate under Section 164 Cr.P.C. However, on carefully going through the aforesaid statements, the possibility of sexual acts being committed based on consent cannot be ruled out. Since, it is a matter of investigation, I do not intend to enter into a finding on that aspect in this proceeding. Therefore, considering the materials placed before this court and also the period of incarceration the petitioner had already undergone, I am of the view that the petitioner can be granted bail with proper conditions to ensure that he is not influencing or intimidating the victim.

In such circumstances, 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 each for the like sum to the satisfaction of the jurisdictional Court.

(ii) The petitioner shall fully cooperate with the investigation.

(iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m every Friday until the filing of the final report.

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

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

(vi) 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.

(vii) 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.