XXXXXXXXXX vs State Of Kerala

Bechu Kurian Thomas, J

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

Petitioner is the accused in Crime No.167/2022 of Kazhakkuttom Police Station, Thiruvananthapuram, now pending as S.C. No.970/2022, registered for the offences under Sections 342, 354(A)(1)(iii), 354D, 355, 376A, 376B, of the Indian Penal Code 1860 apart from Section 3(a)(d) r/w Section 4, Section 5(1)(m)(n) r/w Section 6, Section 9(1)(m)(n) r/w Section 10 and Section 11(iii)(iv) r/w Section 12 of the Protection of Children from Sexual Offences Act, 2012.

According to the prosecution, petitioner who is the victim’s uncle (mother’s sister’s husband) had sexually assaulted her by forcing her to remove her dress and inserted his finger and also committed penetrative sexual assault and thereby committed the offences alleged.

Sri. Amjath A.R, the learned counsel for the petitioner contended that the entire prosecution allegations are false and that the incident as alleged had not occurred. It was further pointed out that the allegations are raised for avoiding repayment a financial liability owned by the victim’s mother. It was further contended that petitioner was arrested on 28.01.2022, and the continued detention is not warranted. It was also submitted that after dismissal of the earlier Bail Application on 29.08.2022, still, there is no chance of any immediate trial taking place and therefore, petitioner ought to be released on bail.

Smt. Seetha.S, the learned Public Prosecutor, opposed the grant of bail and contended that despite the petitioner being a very close relative, the nature of acts committed on the minor victim is too heinous to warrant release of the petitioner on bail even though more than one year have elapsed, since the detention.

On 24.01.2023, this Court directed the Registry to obtain a report from the Special Court, (POCSO), Thiruvananthapuram, as to the possibility of expediting the trial in the present case. By letter dated 03.02.2023, the learned Sessions Judge, has informed that the report of the Forensic Science Laboratory has not yet been received and therefore, the case can be scheduled for trial only after receipt of the said report. It was also stated that as a Special Court for Trial of POCSO cases, several old cases are pending consideration. Despite the above, it was mentioned that the trial can be completed within three months from the receipt of the report of the Forensic Science Laboratory.

In the meantime, notice to the victim was served through the Station House Officer, and despite service of notice, there is no appearance.

Petitioner was arrested on 28.01.2022 and he has been in custody since then. The learned Special Judge, (POCSO) Court, Thiruvananthapuram, has informed that the chances of an immediate trial is remote. There is no certainty about when the Forensic Science Laboratory report will be received. Apart from the above, since the Special Court dealing with POCSO cases, has several other old cases required to be tried, I am satisfied that there is no possibility of an immediate trial.

Having regard to the long period of detention undergone by the petitioner, even though the allegations are serious in nature, I am of the view that the continued detention would amount to punishment before conviction. In such circumstances, petitioner is entitled to be set at liberty however, on strict conditions.

Accordingly, I allow this application 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 co-operate with the trial of the case.

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

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

e) Petitioner shall not enter into the jurisdictional limits of Thiruvananthapuram District, except for the purpose of trial in this case.

f) 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.