Kerala High Court
Naseer vs The Station House Officer on 8 April, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 08TH DAY OF APRIL 2019 / 18TH CHAITHRA, 1941
Bail Appl..No. 1199 of 2018
CRIME NO. 60/2015 OF Kadakkal Police Station , Kollam
PETITIONER/ACCUSED:
NASEER
S/O.NAZUMUDEEN, AGED 34 YEARS, NAZEER MANZIL,
MUTHAYIL, MANCODE VILLAGE, CHITHARA, KADAKKAL,
KOLLAM.
BY ADV. SRI.B.MOHANLAL
RESPONDENT/COMPLAINANT:
THE STATION HOUSE OFFICER
KADAKKAL POLICE STATION
KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No. 1199 of 2018
2
ALEXANDER THOMAS, J.
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Bail Appeal No. 1199 of 2018
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Dated this the 8th day of April, 2019
O R D E R
Petitioner is the sole accused in crime no.60/2015 of Kadakkal police station which has been registered for offences punishable under Sections 376, 384 of IPC and Section 66(c) and 67 of Information Technology Act.
2. It appears that Annexure A1 is the copy of FIR in crime no.60/2015, of which, has been registered by the Kadakkal police on 16.01.2015 at 12.30 a.m. The date and time of the alleged incidents in relation to the crime has not been mentioned in column no.3 of Annexure
-AI - FIR. Column no.12 of Annexure -AI - FIR deals with the FIR contents which reads as follows:
"¦ÕÜÞÄßAÞøßAí ÎÞÈÙÞÈß ÕøáJÃæÎKᢠ¦ÕÜÞÄßAÞøßÏßWÈßKᢠÉÃÕᢠÎxí ÕßÜÉß¿ßMáU ØbJáA{ᢠèµÕÖæM¿áJÃæÎKᢠÎxáÎáU ©çgÖcçJ޿ᢠµøáÄçÜ޿ᢠµâ¿ß dÉÄß ¦ÕÜÞÄßAÞøßçÏÞ¿í ØíçÈÙ¢ ÍÞÕߺîí ¿ßÏÞæ{ ÉùEá dÉçÜÞÍßMߺîᢠÎxᢠdÉÄßÏáæ¿ ÌtáÕßæa ¥Øá¶ÕßÕø¢ ¥ùßÏÞX æºK ¦ÕÜÞÄßAÞøßæÏ ¿ß ÕàGßæÜ µß¿AÎáùßÏßW æµÞIáçÉÞÏß ¦ÕÜÞÄßAÞøßÏáæ¿ ØNÄJßÈᢠ§×í¿JßÈᢠÕßÉøàÄÎÞÏß ÌÜ¢ dÉçÏ޷ߺîᢠÎxᢠµàÝíæM¿áJß èÜ¢·ßµÎÞÏß ÉàÁßMߺîá¢, å¦ÕÜÞÄßAÞøßÏáæ¿å¥ùßçÕÞ ØNÄçÎÞ µâ¿ÞæÄ ¿ßÏÞ{áæ¿ ØbµÞøcÄÏá¢, ¿ß ÉàÁÈ ø¢·B{ᢠµcÞÎùÏßW ɵVJßåinternet Üᢠwhat appåÜᢠdɺøßMߺîᢠÎxᢠdÉÄß çÎW Bail Appl..No. 1199 of 2018 3 ÕµáMá dɵÞøÎáU µáx¢ æºÏñßøßAáKá ®KáUÄí."
3. The F.I. Statement on the basis of which the above FIR has been registered has been produced at page no.4 of the bail application and the same reads as follows:
"®æa ÍVJÞÕí Raju S.å·ZËßÜÞÏßøáK ØÎÏJí ®çKÞ¿í ÉøߺϢ ÍÞÕߺîᢠØíçÈÙ¢ ȿߺîᢠ®æK ÎÞÈÍ¢·æM¿áJáµÏᢠÉâ ÄGáµÏᢠ®æa ØbµÞøcÄ µcÞÎùÏßW ɵVJß æÈxßÜá¢, ÕÞ¿íØí ¦MßÜᢠµâ¿ß dɺøßMߺîí ®æa ÎÞÈcÄÏᢠµá¿á¢Ì¼àÕßÄÕᢠĵVJßøßAáKá. ®ÈßÏíAí 20 ÕÏTáU ²øá æÉYµáGßÏᢠ16 ÕÏTáU ¦YµáGßÏᢠ©Ií. ®æK ¨ ºÄßÏßWæM¿áJß ÈÖßMߺîÏÞ{ßæÈ ÈßÏÎÉøÎÞÏß ¥çÈb×ߺîí çÕI È¿É¿ß ØbàµøßAÃæÎKí ÄÞÝíÎÏÞÏß ¥çÉfßAáKá."
4. A reading of Annexure -AI F.I.S would indicate that the defacto complainant had given the aforesaid Annexure -A1 (1) complaint dated on 6.12.2014 addressed to the C.I. of police, Kilimanoor who in-turn had forwarded the same to the S.H.O concerned and who had registered the FIR by treating the same as the F.I.S. A reading of the complaint/FIS would indicate that the lady defacto complainant is a married woman, aged 39 years, and has a son aged 20 years and a minor daughter aged 16 years and that her husband is working in Gulf and that when her husband was working in the gulf, the accused got acquainted with the said lady and pretending love he had tried to outraged her modesty and that he had attempted to demand money and had invaded her privacy by taking visual pictures and transmitted in the internet and whats-app etc. However, very strangely the name of the accused or the perpetrator has not been broadly Bail Appl..No. 1199 of 2018 4 mentioned in Annexure - A1 F.I.Statement. It is not known as to how the police authorities have made description of the essential aspects of the crime in column no.12 of the FIR. Many details stated in column no.12 of the FIR is not seen reflected in Annexure -AI. Even though the name of the perpetrator/accused is not mentioned by the lady defacto complainant in Annexure -A1 (4) FIS, the name of the petitioner has been shown as the accused in column no.7 of the Annexure A1 series FIR.
5. The learned Public Prosecutor submits that Section 161 of Cr.P.C. statement was taken by the investigating officer from the lady defacto complainant wherein she has made detailed description of the incidents pursuant to the crime.
6. The case diary was given to this court for perusal and it appears that Section 161 statement does not contain any date. It is alleged in the said statement that about six years ago, the accused was known to her husband and her husband had taken him to gulf and that when she had visited her husband in gulf, the accused had frequently interacted with her and later about six years ago, when the accused's grandmother was ill, she had gone to visit the ailing grandparents in the house of the accused and at that point of time he had closed the door and committed forceful sexual intercourse on her and had taken pictures in the mobile and put it on interest and threatened her to give money etc. Even going by the said 161 Bail Appl..No. 1199 of 2018 5 statement, it is seen that the alleged incidents would have occurred at least six years prior to December 20104. The reasons for the long delay in reporting of the alleged incidents are not apprised to this court.
7. The learned counsel for the petitioner contends that the above said unsigned, undated Section 161 Cr.P.C. Statement of the lady defacto complainant cannot be taken as the FIS in the said case inasmuch the said 161 statement had been taken after the registration of the crime. Further, it is pointed out that, even if the above said complaint is treated as the FIS, the same does not disclose any details regarding the occurrence except making mere allegations and that even the name of the accused is not shown therein.
8. In the light of these aspects, the learned counsel for the petitioner would submit that this court may grant anticipatory bail to the petitioner subject to any stringent conditions. But the learned Public Prosecutor opposed the plea for anticipatory bail and submits that the investigation has not so far been completed.
9. On hearing both sides and taking into consideration the above said factual aspects and the attendant circumstances, this court is of the considered view that the custodial interrogation of the petitioner may not really be warranted in the facts of this case. At the same time, necessary directions should be issued so as to ensure that the interrogation of the Bail Appl..No. 1199 of 2018 6 petitioner/accused be completed without any other delay, so that the investigating officer could take steps to finalize the investigation without any further delay. Accordingly the following orders are passed:
(i) The petitioner shall personally appear before the Investigating Officer in relation to Crime No.60/2015 of Kadakkal Police Station and to subject himself for interrogation process at 10 a.m. on any day on or before 17.04.2019.
(ii) Petitioner will fully co-operate with the Investigating Officer in the interrogation process. If the investigating officer shall insist that the petitioner shall undergo potency test etc, then he should co-operate in that regard. If the interrogation process is not over on a single day then the investigating officer will be at liberty to direct the petitioner to appear before him on any other near day as may be found suitable by the investigating officer, to which, the petitioner will fully co-operate. After completing the above interrogation process, in case, the Investigating Officer records the arrest of the petitioner in relation to the abovesaid crime, then he shall be released on bail on his executing bond for Rs.40,000/- (Rupees Forty Thousand only) and on furnishing two solvent sureties for the likesum each to the satisfaction of the Investigating Officer concerned.
However, in that eventuality, the grant of bail will be subject to the Bail Appl..No. 1199 of 2018 7 following conditions:
(a) Petitioner shall not involve in any criminal offences of similar nature.
(b) Petitioner shall fully co-operate with the investigation.
(c) Petitioner shall report before the Investigating Officer as and when required in that connection.
(d) Petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
(iii) The petitioner shall not go anywhere near to the residence of the defacto complainant.
(iv) The petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the lady defacto complainant is residing, until the conclusion of the trial process, except to the limited purpose of reporting to the Investigating Officer in relation to this crime or any other crime or for attending any courts in relation to this case or for contacting his Advocate/Lawyer concerned.
(v) If the petitioner does not comply with the directions issued by this Court subject to the interrogation process, then the benefit of the directions issued by this Court will automatically stand vacated without any further orders of this Court.
If the petitioner violate all or any of the bail conditions, then the jurisdictional court concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law.
Bail Appl..No. 1199 of 20188
With these observations and directions, the above Bail Application will stand disposed of.
Sd/-
ALEXANDER THOMAS
shg JUDGE