Kerala High Court
Geetha vs State Of Kerala on 4 May, 2020
Equivalent citations: AIRONLINE 2020 KER 1290
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 04TH DAY OF MAY 2020 / 14TH VAISAKHA, 1942
Crl.MC.No.1237 OF 2020(D)
AGAINST THE ORDER DATED 03-02-2020 IN CRL.MP 404/2020
PASSED BY THE 1 ADDITIONAL SESSIONS JUDGE, THRISSUR
PETITIONER/DEFACTO COMPLAINANT:
GEETHA
AGED 42 YEARS
W/O PRABHAKARAN, KOLANCHERY THODI,
VENGANELOOR, CHELAKKARA, THRISSUR DISTRICT.
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRA KRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
RESPONDENTS/STATE/ACCUSED:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, -682 031.
(CRIME NO 47/2020 OF CHELAKKARA POLICE
STATION, THRISSUR DISTRICT).
2 GOPAKUMAR,
AGED 53 YEARS
S/O. AYYAPPAN, NEELANPALLIYAD HOUSE,
ELANAD VILLAGE, THRISSUR DISTRICT-680 001.
R2 BY ADV. SRI.BABU S. NAIR
SRI.SAJJU, SPL.PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
04.05.2020, ALONG WITH Crl.MC.1343/2020(G), THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.1237 & 1343 of 2020
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 04TH DAY OF MAY 2020 / 14TH VAISAKHA, 1942
Crl.MC.No.1343 OF 2020(G)
AGAINST THE ORDER DATED 03.02.2020 IN CRL.M.P.NO. 404/2020
IN THE COURT OF THE FIRST ADDITIONAL SESSIONS JUDGE,
THRISSUR
PETITIONER/RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE INSPECTOR OF POLICE,
CHELAKKARA POLICE STATION,THRISSUR.
BY ADV.S.A.SAJJU, SPECIAL PUBLIC PROSECUTOR
RESPONDENT/PETITIONER/ACCUSED:
GOPAKUMAR,
AGED 53 YEARS
S/O.AYYAPPAN,NEELAMPALLIYAL HOUSE,
ELANADU VILLAGE,THRISSUR DISTRICT,
PIN-680586.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
04.05.2020, ALONG WITH Crl.MC.1237/2020(D), THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.1237 & 1343 of 2020
3
C.R.
P.B.SURESH KUMAR, J.
--------------------------------------------------------
Criminal M.C.Nos.1237 and 1343 of 2020
------------------------------------------------------------
Dated this the 4th day of May, 2020.
ORDER
The relief sought in these matters being one and the same, they are disposed of by this common order. The parties and documents are referred to in the order as they appear in Crl.M.C.No.1343 of 2020.
2. Crl.M.C.No.1343 of 2020 is one instituted by the State invoking the power of this Court under Sections 439(2) and 482 of the Code of Criminal Procedure (Code), seeking orders setting aside Annexure-B order in terms of which the Court of the First Additional Sessions Judge, Thrissur granted bail to the respondent who is the sole accused in Crime No.47 of 2020 of Chelakkara Police Station. The crime aforesaid is one registered for offences punishable under Section 354 of the Indian Penal Code(the IPC), Sections 9(f), 9(k) and 9(m) read Crl.M.C.Nos.1237 & 1343 of 2020 4 with Section 10 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The accused is a teacher and NCC instructor in the school where the victim girl aged 11 years who is intellectually disabled is pursuing her studies. The accusation is that on 23.01.2020, during lunch break, the accused took the victim girl to the NCC room, locked the room from inside and touched her breast and private parts with sexual intent. As stated, Crl.M.C.No.1237 of 2020 is also one instituted for the same relief by the mother of the victim girl.
3. Heard the learned Public Prosecutor, the learned counsel for the petitioner in Crl.M.C.No.1237 of 2020 as also the learned counsel for the accused.
4. The occurrence took place on 23.01.2020. The case was registered on 25.01.2020. The accused was arrested thereupon on 02.02.2020 and he was produced before the Special Court for trial of offences punishable under the POCSO Act on 03.02.2020. Annexure-A is the remand application. In Annexure-A remand application, it is stated that since the accused is a teacher of the school where the victim is pursuing her studies and since the witnesses in the case are all students Crl.M.C.Nos.1237 & 1343 of 2020 5 and teachers of the school, the course of investigation will be affected adversely, if the accused is released on bail and that therefore, he shall be committed to custody. The court below granted bail to the accused on the date of production itself observing that the accused has touched the body of the victim girl only over her dress and that detention of the accused is not necessary for continuing the investigation. The court, however, ordered that grant of bail would be subject to the condition that the accused shall not visit the school for a period of seven days and shall report before the Investigating Officer on all alternate days for a period of two weeks and thereafter once in a week for a further period of two months.
5. The learned Public Prosecutor contended that the materials on record do not indicate that the court below has considered the nature and gravity of the accusation, the severity of punishment in the event of conviction, the chance of witnesses being influenced by the accused and other relevant factors, in the matter of granting bail to the accused. It was pointed out that the accused has been granted bail even before the statements of the witnesses who are the teachers and students of the school where the accused is working, were recorded. It was contended by the learned Public Prosecutor that Crl.M.C.Nos.1237 & 1343 of 2020 6 the decision to enlarge the accused on bail in a case of this nature would certainly affect the investigation in the case and there would, therefore, be no fair trial at all in the case.
6. The learned counsel for the petitioner in Crl.M.C.No.1237 of 2020 has reiterated the submissions made by the learned Public Prosecutor. In addition, it was also argued by the learned counsel that Annexure B order granting bail to the accused is an illustrative case of erroneous and capricious exercise of jurisdiction by the court in the matter of granting bail to an accused in a serious offence.
7. Per contra, the learned counsel for the accused pointed out that the State and the mother of the victim, in a sense, seek cancellation of the bail granted to the accused. Placing reliance on the decisions of the Apex Court in State (Delhi Administration) v. Sanjay Gandhi [1978 SCC (Crl.)223], Dolat Ram v. State of Haryana [(1995)1 SCC 349], and various judgments of the Apex Court and this Court following the aforesaid judgments, it was argued by the learned counsel that cancellation of the bail involves review of the decision already taken to grant bail and review of such a decision is permissible only in the event of supervening circumstances. According to the learned counsel, in the Crl.M.C.Nos.1237 & 1343 of 2020 7 absence of any supervening circumstances, and in the absence of any case for the prosecution that the accused has abused the freedom granted to him, the order granting bail is not liable to be interfered with. In short, the submission made by the learned counsel for the accused is that the power of this Court under Section 439(2) of the Code cannot be invoked in a case where there is no supervening circumstances warranting cancellation of bail or where the prosecution has no case that the accused has abused the freedom granted him. It was also the submission of the learned counsel that if Section 439(2) of the Code cannot be invoked for the aforesaid purpose, there is no question of invoking the power of this Court under Section 482 the Code for this purpose.
8. I have considered the contentions raised by the learned counsel for the parties on either side.
9. Section 439 of the Code reads thus:
439. Special powers of High Court or Court of Session regarding bail.
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section;
Crl.M.C.Nos.1237 & 1343 of 2020 8
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
PROVIDED that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice:
PROVIDED FURTHER that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of Section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
In Sanjay Gandhi, the Apex Court while dealing with the issue relating to the nature of burden which rests on the prosecution Crl.M.C.Nos.1237 & 1343 of 2020 9 in an application for cancellation of bail under Section 439(2) of the Code, held that proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. The relevant portion of the judgment reads thus;
"The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail."
In Dolat Ram, the Apex Court held further that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It was also held in the said case that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. The relevant passage of the judgment reads thus:
Crl.M.C.Nos.1237 & 1343 of 2020 10 "Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of the bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."
Though it is stated in Dolat Ram that interference or attempt to interfere with the due course of administration of justice, evasion or attempt to evade the due course of justice, abuse of the concession granted to the accused in any manner, the possibility of the accused absconding etc. are generally the reasons justifying the cancellation of bail, they are only illustrative and not exhaustive. In Puran v. Rambilas [(2001)6 SCC 338], after referring to Dolat Ram, it was clarified by the Apex Court that grant of bail in a heinous crime ignoring the material and evidence would be one of the additional grounds Crl.M.C.Nos.1237 & 1343 of 2020 11 on which cancellation of bail could be sought, for such an order would be against all principles of law. It was also held in the said case that interest of justice would also require that such perverse orders be set at naught and bail be cancelled. It was also observed in the said case that since such offences which have a very serious impact on the society are on the rise, arbitrary and wrong exercise of discretion by the courts for grant of bail in such cases have necessarily to be corrected.
Paragraph 10 of the judgment in Puran reads thus:
"10. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Ram v. State of Haryana, reported in 1995 (1) SCC (Cri) 349. In this case it has been held that rejection of bail in a non bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest Crl.M.C.Nos.1237 & 1343 of 2020 12 of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the Trial Court has to be corrected."
The view aforesaid has been expressed by the Apex Court in Criminal Appeal No.2087 of 2008 arising out of SLP(Crl.) No. 5126 of 2007 also. The relevant passage reads thus:
"It is now a settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also."
10. In Gurcharan Singh v. State(Delhi Administration) (AIR 1978 SC 179), the Apex Court has held that in the light of the position of the Court of Session vis-a-vis the High Court, the High Court is empowered under Section 439(2) of the Code to commit a person released on bail by the Court of Session to custody, if it thinks appropriate to do so, if the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed. The relevant passage of the judgment in Gurcharan Singh dealing with said aspect reads thus:
Crl.M.C.Nos.1237 & 1343 of 2020 13 "..... Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub- section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."
Crl.M.C.Nos.1237 & 1343 of 2020 14 It is thus evident that if the order granting bail by the Court of Session is vitiated by arbitrary and wrong exercise of discretion by the court, the same can be set at naught by the High Court under Section 439(2) of the Code. In other words, in order to invoke Section 439(2) of the Code, it is not necessary that there shall be supervening circumstances warranting cancellation of bail nor shall there be any case for the prosecution that the accused has abused the freedom by enjoying the concession of bail during the trial. An interpretation to Section 439(2) of the Code as put forward by the learned counsel for the accused would lead to a situation where there will not be a remedy for the State and for persons aggrieved by orders granting bail which are vitiated by erroneous and arbitrary exercise of discretion.
11. Now, I shall proceed to consider the question whether the impugned order is vitiated by arbitrary and wrong exercise of discretion by the court warranting interference by this Court under Section 439(2) of the Code. An order granting bail, though a discretionary order, it is trite that it calls for exercise of discretion in a judicious manner and not as a matter of course, and shall be supported by cogent reasons [See Ram Govind Upadhyay v. Sudarshan Singh (2002)3 SCC 598]. Crl.M.C.Nos.1237 & 1343 of 2020 15 The reason is that bail is a provision which is used by mischievous and criminal elements to thwart the constitutionally guaranteed fair trial in a case. In Prasanta Kumar Sarkar v. Ashis Chatterjee [(2010)14 SCC 496] it was held by the Apex Court that while considering an application for bail, the court has to exercise its discretion cautiously, judiciously and strictly in compliance with the relevant principles. The Apex Court has laid down in the said case the factors to be borne in mind while considering an application for bail. The same are: (i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. It is held in the said case that if the court does not advert to the aforesaid factors and mechanically grants bail, the said order would suffer from the vice of non- application of mind, rendering it to be illegal and liable to be set aside. The decision in Prasanta Kumar Sarkar was quoted Crl.M.C.Nos.1237 & 1343 of 2020 16 with approval by the Apex Court in Mahipal v. Rajesh Kumar [2019(16)SCALE 813].
12. Violence against children violates the dignity and rights of children and robs from them the joys of childhood. Child abuses and sexual offences were widespread across the country, impacting children of all ages. There has been media reports to the effect that in India, a child in the age group of 10 years is raped in every 13 hours and a child below 16 years is raped in every 155 minutes. Sexual offences against children were not adequately adressed by the laws in force, nor were they adequately penalised. In terms of United Nations Convention on the Rights of Children, ratified by India on 11.12.1992, it was obligatory for our country to undertake appropriate national, bilateral and multilateral measures to prevent, among others, sexual exploitation of children. It is in the aforesaid background, having regard to the obligation of the State under Articles 15 and 39 of the Constitution that the POCSO Act was introduced for protection of children from sexual assault, sexual harassment etc. Article 3.1 of the United Nations Convention on Rights of Children provides, among others, that best interests of children shall be the primary consideration in all actions concerning children before courts of Crl.M.C.Nos.1237 & 1343 of 2020 17 law. The courts have, therefore, a duty to interpret and enforce the provisions of the POCSO Act in a manner that would achieve the object of the Act, having regard to the spirit of the Convention.
13. As noted, the accusation is one under Sections 9(f), 9(k) and 9(m) of the POCSO Act. The minimum punishment provided for the said offences under Section 10 of the Act is five years. The accused is none other than the teacher of the school where the victim aged 11 years, who is an intellectually disabled girl is studying. The accusation is that the accused took the victim to his private room in the school and taking advantage of the intellectual infirmity of the victim, he touched her breast and private parts with sexual intent. As noted, bail was granted to the accused by the court below holding that the accused has touched the body of the victim girl only over her dress and that detention of the accused is not necessary for continuing the investigation. To say the least, the aforesaid observations are erroneous.
14. The court below has adopted a very casual approach in the matter of enlarging the accused on bail. According to me, Judges need to change their mindset and should be sensitive in matters of this nature, for, lack of Crl.M.C.Nos.1237 & 1343 of 2020 18 sensitivity would create distance between justice seeker and justice provider. The impugned order does not indicate that the court below has considered the existence or otherwise of the grounds to believe that the accused has committed the offence. The order does not indicate that the court below has considered the nature and gravity of the accusation. The order does not indicate that the court below has considered the severity of the punishment in the event of conviction. The order does not indicate that the court below has considered the character, behaviour, means, position and standing of the accused. The order does not indicate that the court below has considered the likelihood of the offence being repeated. Above all, the court below has not considered seriously the apprehension of the witnesses who are none other than the teachers and students of the school where the accused is working, being influenced. The court below has also not considered the danger of justice being thwarted by grant of bail. It is also seen that even while granting bail, the court below has not imposed on the accused adequate conditions to rule out the apprehension expressed by the prosecution that the witnesses are likely to be influenced if the accused is enlarged on bail at that stage, and to ensure a fair trial in the case.
Crl.M.C.Nos.1237 & 1343 of 2020 19
15. Having regard to the totality of the facts and circumstances, I am of the view that grant of bail in a case of this nature on the very day on which the accused was produced before the court would never be in consonance with the scheme and spirit of the POCSO Act and would be against the welfare of the children. In short, I have no hesitation to hold that the impugned order is vitiated by erroneous and arbitrary exercise of discretion by the court below. True, the prosecution has no case that the accused has either abused the freedom granted to him in terms of the order or violated the conditions imposed in terms of the order. But the same, according to me, is of no consequence since it is found that the order is vitiated by erroneous and arbitrary exercise of power and that even the conditions imposed in terms of the order were not adequate and sufficient to ensure a fair trial in the case.
In the result, the Criminal Miscellaneous Cases are allowed and Annexure B order is set aside. There will be a direction to arrest the accused and commit him to custody.
Sd/-
P.B.SURESH KUMAR, JUDGE rkj/pv Crl.M.C.Nos.1237 & 1343 of 2020 20 APPENDIX OF Crl.MC 1237/2020 PETITIONER'S EXHIBITS:
ANNEXURE 1 COPY OF THE FIRST INFORMATION REPORT ALONG WITH FIS IN CRIME NO 47/2020 OF CHELAKKARA POLICE STATION ANNEXURE 11 COPY OF THE CERTIFICATE ISSUED FROM GENERAL HOSPITAL, THRISSUR ANNEXURE 111 COPY OF THE REMAND REPORT DATED 3.2.2020 ANNEXURE IV CERTIFIED COPY OF THE ORDER DATED 3.2.2020 IN CRL.MP NO 402/2020 IN CRIME NO 47/2020 OF CHELAKKARA POLICE STATION THRISSUR DISTRICT Crl.M.C.Nos.1237 & 1343 of 2020 21 APPENDIX OF Crl.MC 1343/2020 PETITIONER'S EXHIBITS:
ANNEXURE A A TRUE COPY OF THE REMAND APPLICATION DATED 03.02.2020 FILED BY IN THE COURT OF FIRST ADDITIONAL DISTRICT JUDGE,THRISSUR.
ANNEXURE B THE CERTIFIED COPY OF THE ORDER DATED 03.02.2020 IN CRL.M.P.NO.404/2020 BY THE FIRST ADDITIONAL SESSIONS COURT,THRISSUR.