XXXXXXXXXX vs State Of Kerala

Ziyad Rahman A.A., J

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

Petitioner is the 1st accused in Crime No.835/2022 of Adoor Police Station, Pathanamthitta, which was registered for the offences punishable under Sections 323, 324, 376(2)(f)(l)(n) read with Section 34 of the Indian Penal Code, 1860 and Section 92(d) of the Right to Person with Disabilities Act and Rules, 2019.

The prosecution case is that, the victim, a mentally challenged woman, who is unable to hear or speak, was subjected to sexual assault by the petitioner, who is none other than the brother-in-law of the victim. The 2nd accused is the wife of the petitioner and the sister of the victim. The crime was registered based on the same and as part of the investigation, the petitioner was arrested on 11.06.2022. Since then, he has been under judicial custody, and this application for bail was submitted in such circumstances.

Heard Sri. P.Anoop (Mulavana), the Learned Counsel for the petitioner and Sri. C.S Hrithik, the learned Senior Public Prosecutor appearing for the state.

The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations and he denies the allegations of the sexual assault. It is also pointed out that he has been in custody for more than one year, and the final report was already submitted. Therefore, there is no purpose in keeping the petitioner under detention in this case. The petitioner is ready and willing to abide by any conditions that may be imposed by this Court.

On the other hand, the learned Public Prosecutor opposes the application for bail. It is pointed out that there are specific allegations against the petitioner for sexually assaulting the victim, a mentally challenged woman, on multiple occasions, and therefore, the dismissal of the application was sought.

I have gone through the materials placed on record and heard the contentions raised from both sides. Earlier, when the matter came up for consideration, a report was called for from the learned Sessions Judge as to the possibilities of expediting the trial of the said case. In response to the same, a report dated 16.06.2023 has been placed on record, wherein it is conveyed that the FSL report has not been received so far, and therefore, it is not possible to proceed with the trial as of now. Besides the same, the victim is a disabled lady who cannot hear and speak, hence, examination can be done only with the help of an interpreter. Therefore, the Sessions Judge seeks six months from the date of receipt of the FSL report, to complete the trial. From the aforesaid report, it is evident that the trial of the case is likely to take some time. There are indeed serious allegations against the petitioner.

However, the fact remains that the petitioner has been in custody since 11.06.2022, and the likelihood of the trial taking place in near future is very less. The petitioner had already completed the judicial detention of more than one year. Since the investigation in this case is already completed, I do not find any necessity to continue the petitioner's incarceration. Regarding the possibility of influencing the victim and other witnesses, I am of the view that the same can be addressed by incorporating appropriate conditions while releasing the petitioner.

In the result, the bail application is allowed, and the petitioner is directed to be released on bail subjected 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 Magistrate.

ii) The petitioner shall surrender his passport to the investigating Officer, and 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 on every Wednesday until the filing of the final report.

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

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.

viii) The petitioner shall not enter into the Adoor police station limits until further orders, except for the purpose of appearing before the Court and before the Investigation Officer in compliance with the conditions imposed by this Court.

In case of violation of any of the above conditions, the jurisdictional Magistrate shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law.