Kerala High Court
Vaisakh vs State Of Kerala on 20 December, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941
Bail Appl..No.9213 OF 2019
AGAINST THE ORDER IN CRLMP 4329/2019 DATED 11-12-2019 OF FIRST
ADDITIONAL SESSIONS JUDGE (SPECIAL JUDGE),PALAKKAD
CRIME NO.656/2019 OF Alathur Police Station , Palakkad
PETITIONER/ACCUSED:
VAISAKH
AGED 24 YEARS
S/O. CHELLAPPAN, PANDARAKULAMB VEEDU,
PARAKKAL PARAMBU, TARUR, ALATHUR TALUK.
BY ADVS.
SRI.SAIJO HASSAN
SRI.RAFEEK. V.K.
SMT.P.PARVATHY
SMT.SURYA P SHAJI
SHRI.MANAS P HAMEED
SHRI.GAUTHAM MOHAN H.
SMT.AATHIRA SUNNY
RESPONDENT/STATE/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-31.
OTHER PRESENT:
SRI. SAIGI JACOB PALATTY PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
20.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.9213 OF 2019
2
ALEXANDER THOMAS, J.
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Bail Appl.No.9213 of 2019
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Dated this the 20th day of December, 2019
O R D E R
The petitioner herein has been arrayed as the sole accused in the instant Crime No.656/2019 of Alathur Police Station, Palakkad, which has been registered for offences punishable under Section 363,376(2)(n), 506 and 354A(1)(i)(2) IPC and Section 7 read with Section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The crime has been registered on the basis of First Information Statement said to have been given by the lady victim on 13.11.2019 at about 6.40 p.m. in respect of the alleged incidents that happened for the period from 16.05.2017 to 17.03.2019. The petitioner has been arrested on 14.11.2019, and after his remand, has been under detention since then.
2. The brief of the prosecution case is that the date of birth of the lady victim in this case is 17.03.2000, and she has completed majority age of 18 years only on 17.03.2018. Earlier on 16.05.2017, at about 12 noon, the petitioner/accused then aged 22 years had kidnapped the victim girl who was then a minor aged 17 years, from the lawful guardianship of her Bail Appl..No.9213 OF 2019 3 parents by enticing her to go with him from Alathur Swathi Junction to Malayapothi and from that place the petitioner has sexually assaulted her by hugging and kissing her and he had taken photographs of those incidents in his mobile phone. Later in the month of January, 2019, the petitioner had taken the lady victim to a hotel at Kozhikode and had committed forcible sexual intercourse on her by threatening that he would publish the abovesaid photographs already taken by him and that he had taken her nude photographs. Later, the petitioner has married the lady victim at Madakkathara Subramanya Temple on 17.03.2019, by threatening her that he would publish her nude photographs etc.
3. The learned counsel for the petitioner point out that the abovesaid allegations are absolutely false and fabricated and that, the petitioner and the lady victim were having an intense love affair and that she had duly completed her majority age of 18 years on 17.03.2018, and thereafter, the marriage between the petitioner and the lady victim was lawfully solemnised as contemplated by the provisions of the Hindu Marriage Act, in the temple concerned on 17.03.2019 and they were living together as husband and wife and the said solemnised marriage was duly registered on 16.04.2019, as per the provisions of the Kerala Registration of Marriages (Common) Rules 2008, as can be seen from Annexure A2 Bail Appl..No.9213 OF 2019 4 certificate issued by the Local Marriage Registrar, which would certify the factum of the solemnisation of marriage between the parties on 17.03.2019. That since the lady victim was a student of MBBS, she had to stay in the Medical College Hostel and there the parents had forcefully taken her away and had pressurized her to make false allegations against the petitioner, as her parents more particularly, her father was against the marriage between them. Further that, if the lady victim is given a fair opportunity to state the correct facts honestly before an impartial forum, then she would definitely say that the marriage between them was out of love and their own volition etc. and that she has been falsely instigated by her father to make the false allegations. Further it is pointed out that, the petitioner has suffered detention in this case for the last 37 days, and that his continued incarceration may not be necessary, and this Court may order to release him on regular bail, subject to any strict conditions.
4. The learned Prosecutor has opposed the plea for regular bail and has pointed out that the crime has been registered only on the basis of the allegations made by the lady victim in her FI statement. To a specific query as to whether the investigation officer has conducted any effective investigation so far to ascertain from the Temple authorities and other persons who may had been there in the vicinity of the Temple at the time of Bail Appl..No.9213 OF 2019 5 solemnisation of marriage between the parties 17.03.2019, as to whether the marriage was out of force and coercion or whether the version of the petitioner that the marriage was only solemnised out of the consent and volition of the parties etc, the learned Public Prosecutor submits that he has not secured any information on those aspects and that necessary instructions shall be given to the investigation officer to make a thorough and fair probe into all aspects of the matter including these crucial aspects.
5. Counsel for the petitioner has fervently pleaded that the afore said allegations of forcible marriage etc. are absolutely false and fabricated, and that Annexure A1 series of photographs of the couple would clearly show that the lady victim was always happy in the company of the petitioner and that the allegations of force and coercion in the conduct of the marriage are absolutely false etc.
6. In that regard this Court will only venger to observe that it is the solemn duty of the police to conduct a fair and honest investigation so that the truth of the matter is ferreted out and in that regard the matters disclosed by material circumstances like Annexure 1 series photographs may also be duly taken into account by the investigating officer so as to ascertain about the veracity of allegations and counter allegations made by the rival parties in this case.
Bail Appl..No.9213 OF 2019 6
7. After hearing both sides and after careful evaluation of the facts of the case, and taking into account some of the abovesaid submissions made on behalf of the petitioner as noted hereinabove, and also to the fact that the petitioner is a young man hardly the age of the 24 years, and also the aspect that he has already suffered detention in this case for the last 36 days, this Court is inclined to take the view that further incarceration of the petitioner could be avoided, so that he could be released on regular bail subject to appropriate conditions.
8. Accordingly, it is ordered in the interest of justice that the petitioner shall be released on bail on his executing bond for Rs.40,000/- (Rupees Forty Thousand only)and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the Competent Court below concerned. However, the grant of bail will be subject to following conditions:
i. The petitioner shall report before the Investigating Officer (I.O.) on every 2 nd and 4th Saturdays, at any time between 9 am and 1 pm, for the next 3 months, and thereafter he will report before the I.O., as and when directed.
ii. The petitioner should fully co-operate with the I.O., in the conduct of the investigation process.
iii. The petitioner shall not intimidate or attempt to influence the victim, witnesses; Bail Appl..No.9213 OF 2019 7 nor shall he tamper with the evidence.
iv. The petitioner shall not commit any offence while on bail.
v. The petitioner shall not go anywhere near to the residence of the lady victim.
vi. The petitioner shall not enter into or reside within the territorial limits of the Police Station where the lady victim is residing until the conclusion of investigation process in this case, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyers/advocates concerned.
vii.However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned.
If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law.
With these observations and directions, the above Bail Application will stand disposed of.
Sd/-
ALEXANDER THOMAS
ska JUDGE