XXXXXXXXXX vs State Of Kerala

Bechu Kurian Thomas, J

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

Petitioner is the sole accused in Crime No. 194 of 2022 of Mala Police Station, Thrissur. The offences alleged against the petitioner are punishable under Sections 376AB, 376(2)(l)(k)(n), 370A, 363, 354A(l)(i)(iii) and 201 of Indian Penal Code, 1860, apart from Section 4(2) read with Section 3(a)(b), Section 6(1) r/w Section 5(l) (m)(n), Section 8 r/w Section 7, Section 10 r/w Section 9(l)(m)(n) and Section 12 read with Section 11(iii) of the Protection of Children from Sexual Offences Act, 2012 and Section 3(1)(w)(i) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

According to the prosecution, petitioner is the step-father of the victim, aged only 10 years and that on 15.02.2022 while the victim was playing in the courtyard of the house, the petitioner took the victim to a room and committed penetrative sexual assault apart from licking her private parts. It is also alleged that the petitioner committed sexual assault on the victim by showing obscene videos on his mobile phone.

Sri.Aswin Nanda A., the learned counsel for the petitioner, submitted that petitioner was arrested on 23.02.2022 and has been in detention since then i.e., for more than 250 days. It was further submitted that the chemical analysis report had not yet reached the trial court and, therefore, there is going to be a long delay in even commencement of trial. The learned counsel also vehemently contended that considering the period of detention already undergone, and non-receipt of chemical analysis report till date; the further detention ought not be permitted. It was submitted that petitioner is willing to abide by any condition, that may be imposed upon him.

Sri.Noushad   K.A., the learned Public Prosecutor, opposed the grant of bail and submitted that petitioner has committed a heinous crime that too on his step-daughter. It was further submitted that the chemical analysis report of the vaginal swab and dress has already been obtained and all what remains is only the analysis report of the mobile phone. It was also submitted that notice to the victim was served on 19.11.2022 and that considering the gravity of the offences alleged, petitioner ought not to be released on bail.

I have considered the rival contentions and also perused the case diary. The final report was filed on 31.03.2022 and the case is now pending as S.C.No.488/2022 before the Sessions Court [Trial for offences relating to POCSO], Thrissur.

The forensic analysis report in respect of the dress and the vaginal swab has already been received. However, the analysis report of the mobile phone has not yet been received and, therefore, there is merit in the contention of the petitioner that, trial may be delayed.

The charge has also not yet been read-over to the petitioner. On a perusal of the medical report, it is also noticed that the hymen of the victim is intact.

Considering the period of detention already undergone i.e., from 23.02.2022 and the possibility of delayed trial, I am of the view that further detention of the petitioner would not serve any purpose and that the petitioner is therefore, liable to be released on bail, subject to stringent conditions.

Accordingly, I allow this application.

(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  co-operate with  the  trial of the case.

(c) Petitioner shall report before the Investigating Officer, on every 4th Saturday between 9 a.m. and 11 a.m.

(d) Petitioner   shall   not   enter   into   the jurisdictional limits of Mala Police Station, until conclusion of trial, except for abiding with condition no.(c) above.

(e) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he attempt to tamper with the evidence.

(f) Petitioner shall not commit any similar offences while he is on bail.

(g) Petitioner shall not leave the country without the permission of the jurisdictional Court.

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.