XXXX vs State Of Kerala

Gopinath P, J

The petitioner is the accused in Crime No.136/2021 of Wandoor Police Station, Malappuram District alleging commission of offences under Sections 366, 376 (2) (n) of Indian Penal Code and Section 6 and 5(1) of Protection of Children from Sexual Offences Act, 2012 ('the POCSO Act'). Following investigation of the case, a final report has been filed before Special Court for the trial of Offences against Children (Additional Sessions Court-I), Manjeri, where offences under Sections 12, 11(2) and (4) of the POCSO Act have also been incorporated in addition to the other offences.

The allegation against the petitioner is that during the month of December, 2020, the petitioner had forced the de facto complainant to come out of her house at about 1.30 a.m. while other family members were sleeping and had sexually assaulted her. It is alleged that the de facto complainant/victim was a minor at that time.

The learned counsel for the petitioner submits, with reference to the statement given by the victim/de facto complainant, that the petitioner and the de facto complainant were in love with each other and that the petitioner is absolutely innocent of all the allegations levelled against him. It is submitted that even if incident/complaint is true, there was no sexual assault and the affair was completely consensual. It is also submitted that the petitioner has been custody from 17.7.2021 and that a final report has already been filed in the matter.

The learned Public Prosecutor on instructions would submit that this is a case where serious allegations are levelled against the petitioner and that there is even an allegation that the petitioner had successfully prevented the marriage of the victim with another person. It is submitted that if the petitioner is released on bail, there is every chance of the petitioner influencing the witnesses and intimidating the victim/de facto complainant. It is therefore submitted that the petitioner should not be granted bail at this point of time.

Having considered the submissions and considering the fact that the petitioner has been in custody 17.7.2021 and also considering the fact that the investigation has been completed and final report has been filed, I am of the opinion that the petitioner can be released on bail subject to stringent conditions.

In the result, this application is allowed and it is directed that the petitioner shall be released on bail subject to the following conditions.

i) The petitioner shall execute a bond for sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the Special Court for the trial of Offences against Children (Additional Sessions Court-I), Manjeri,

ii) The petitioner shall co-operate with the investigating officer and report before the Investigating Officer in Crime No.136/2021 of Wandoor Police Station on every Saturday at 11 a.m. and also on other days when called upon to do so by the Investigating Officer.

iii) The petitioner shall not attempt to influence any witnesses in S.C.No.1025/2021 on the file of Special Court for the trial of Offences against Children (Additional Sessions Court-I), Manjeri arising out of Crime No.136/2021 of Wandoor Police Station.

iv) The petitioner shall appear on every posting date of S.C.No.1025/2021 on the file of Special Court for the trial of Offences against Children (Additional Sessions Court-I), Manjeri, without fail.

v) The petitioner shall not enter local limits of the Wandoor Police Station.

vi) The petitioner shall not engage in any other crime while on bail.

If any of the aforesaid conditions are violated, it will be open to the Investigating Officer in Crime No.136/2021 of Wandoor Police Station to approach the Special Court for the trial of Offences against Children (Additional Sessions Court-I), Manjeri, for cancellation of bail.