Kerala High Court
Biju vs State Of Kerala on 2 June, 2025
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
B.A. No.6528/25 1
2025:KER:38995
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
MONDAY, THE 2ND DAY OF JUNE 2025 / 12TH JYAISHTA, 1947
BAIL APPL. NO. 6528 OF 2025
CRIME NO.267/2025 OF NEDUMBASSERY POLICE STATION, ERNAKULAM
AGAINST THE ORDER DATED 25.04.2025 IN CRMP NO.1299 OF 2025 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN
& CHILDREN), ERNAKULAM
PETITIONER/ACCUSED:
BIJU
AGED 54 YEARS, S/O. DAMODAR,
NAYATHODE,
ANGAMALY VILLAGE, ERNAKULAM RURAL,
ERNAKULAM DISTRICT,
KERALA, PIN - 683585
(NEDUMBASSERY AIRPORT POLICE STATION)
BY ADVS.
SRI.A.T.ANILKUMAR
SMT.V.SHYLAJA
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE SUB INSPECTOR OF POLICE
NEDUMBASSERY AIRPORT POLICE STATION,
ERNAKULAM DISTRICT, PIN - 683585
B.A. No.6528/25 2
2025:KER:38995
SMT. SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
02.06.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A. No.6528/25 3
2025:KER:38995
BECHU KURIAN THOMAS, J.
--------------------------------
B.A. No.6528 of 2025
---------------------------------
Dated this the 2nd day of June, 2025
ORDER
Petitioner is the accused in Crime No.267 of 2025 of Nedumbassery Airport Police Station. The crime was registered alleging offences punishable under sections 9(m), 9(n) and section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the Act'). Petitioner apprehends arrest in the above crime and hence he seeks pre-arrest bail.
2. The prosecution alleges that, sometime in between 01.06.2023 and 31.12.2024, the accused, who is a relative of the minor child's father, called her to his side, when she visited his residence, and allowed her to sit on his lap and made her to touch his genital organ and thereby committed the offences alleged.
3. Sri. A.T. Anilkumar, the learned counsel for the petitioner submitted that the complaint stems from a marital dispute between the victim's parents and that he is being made a scapegoat in the said crime. According to the learned counsel, petitioner is a close relative of the father of the minor child and he had provided assistance to him in initiating the legal proceedings for divorce. Realising that the petitioner is providing moral and other assistance to her husband in the marital disputes, the mother of the victim developed a B.A. No.6528/25 4 2025:KER:38995 hostility against him, and initiated a false complaint against the petitioner. According to the learned counsel, the manner in which the complaint has been worded and the circumstances will indicate that the ultimate objective of the complainant is to avoid custody of the minor child being given to the father of the victim. The learned counsel further submitted that the petitioner has no criminal antecedents of any nature and if he is not granted anticipatory bail, his entire life, his family and even that of his child will be destroyed.
4. The learned Public Prosecutor on the other hand submitted that the allegations are serious in nature and that the truth of the allegations can be identified only after custodial interrogation. According to the learned Public Prosecutor, at this juncture, it is not possible to arrive at a conclusion regarding the veracity of the complaint and taking note of the severity of the crime alleged, anticipatory bail ought not to be granted.
5. I have considered the rival contentions and have also perused the complaint of the victim. The case diary was also perused.
6. The victim is a minor girl of ten years. Petitioner is a relative of the father of the victim. Marital disputes are existing between the parents of the victim. O.P (Divorce) No. 761/2023 is pending before the Family Court, Ernakulam. The Family Court is stated to have given custody of the minor child to her father for two days every month. The incident is alleged to have occurred sometime in between 01.06.2023 and 31.12.2024, when the father B.A. No.6528/25 5 2025:KER:38995 of the victim had custody of the child for two days. The allegations in the complaint indicate that the incident occurred while the father had interim custody of the child, her paternal grandmother took her to visit petitioner and his family. The allegations indicate that there were several persons in the house including petitioner's wife, his daughter, the child's grandmother and the sister of the child. While the victim was playing outside the house with her sister, petitioner is alleged to have called her to his side, put her on his lap and made her to touch his private part. Immediately she got down from his lap and ran to her grandmother. The victim repeated this incident to the Magistrate in her statement under section 164 Cr.P.C.
7. On a thorough reading of the complaint, it is noticed, as pointed out by the learned counsel for the petitioner, that the incident alleged to have occurred while the victim's father was having custody of the child for two days. The victim has stated that because of the incident, she does not like to visit her father's house. The repercussion of the allegation may have an impact on the custody granted to the father of the victim. The investigation conducted so far has not obtained any statement from other persons present in that house at that time about any such incident or that the victim had ever divulged the incident to anyone. The information was conveyed by the victim after prolonged delay. At the same time, in the 164 statement given by the victim before the Magistrate, she has specifically mentioned about the B.A. No.6528/25 6 2025:KER:38995 incident. Hence I called for the case diary.
8. On a perusal of the statement of the victim, it is noticed that the victim has specifically alleged that the accused made her sit on his lap and made her to touch his private part at which point she immediately got down and ran towards her grandmother and also that she realised that it was a bad touch only when her mother explained to her about bad touch. The incident alleged did not happen at her father's house, yet she says that due to the incident, she does not like to go to her father's house.
9. In this context, it is relevant to mention that from the investigation conducted so far, as revealed from the statements of those questioned, that grandmother of the child has her own doubts about the incident as there is a marital discord between parents of the child and also since if such an incident happened, the child would have immediately divulged it to her. She has also stated that after the petitioner initiated divorce proceedings, he is given custody of the child twice a month by order of the court. She has also stated that whenever she went to the petitioner's house, the child was always within her eyesight.
10. The father of the minor child also doubts the allegations and has given a statement that the accused had helped him to find a lawyer for the divorce proceedings and also that when the child underwent counselling at Medical College, Kalamassery, as per the instructions of the Mediator of the B.A. No.6528/25 7 2025:KER:38995 Family Court, she never revealed any such incident to the said Counsellor.
11. While the above circumstances stare from the records, this Court must also be guided by section 29 of the Act which creates a statutory presumption that the offence was committed, unless the contrary is proved. As observed in the decision in State of Bihar v. Rajballav Prasad (2017) 2 SCC 178 the Court should take into consideration the presumption under S.29 of the Act while dealing with an application for bail filed by an accused under the Act.
12. In Joy V.S v. State of Kerala, (2019 (2) KHC 66), a learned Single Judge of this Court had observed that the statutory presumption under S.29 of the Act does not mean that the prosecution version has to be accepted as gospel truth in every case and that the presumption does not mean that the court cannot take into consideration the special features of a particular case. Patent absurdities or inherent infirmities or improbabilities in the prosecution version may lead to an irresistible inference of falsehood in the prosecution case. The Court further observed that the presumption would come into play only when the prosecution is able to bring on record facts that would form the foundation for the presumption. Otherwise, all that the prosecution would be required to do is to raise some allegations against the accused and to claim that the case projected by it is true. It was further held that the courts must be on guard to see that the application of the presumption, without adverting to B.A. No.6528/25 8 2025:KER:38995 essential facts, shall not lead to any injustice and the presumption under section 29 of the Act is not absolute. The statutory presumption would get activated or triggered only if the prosecution proves the essential basic facts. Relying upon the decision in Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694 it was held that if the accused is able to create serious doubt on the veracity of the prosecution case or the accused brings on record materials which would render the prosecution version highly improbable, the presumption would get weakened.
13. No inflexible guidelines or strait jacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and circumstances of each case in consonance with the legislative intention.
14. On a consideration of the entire circumstances, including the matrimonial disputes pending between the parents of the victim and the nature of allegations having a tendency to affect the custody claimed by the father of the victim, apart from the absence of any criminal antecedents against the petitioner, this Court is of the view that this is a fit case where the discretion of the court can be exercised in favour of the petitioner to grant him pre-arrest bail on conditions.
Accordingly, this application is allowed on the following conditions:
(a) Petitioner shall appear before the Investigating Officer on 09-06-
2025 and again if needed on 10-06-2025 and shall subject himself to interrogation.
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(b) If after interrogation, the Investigating Officer proposes to arrest the petitioner, then, he 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 before the Investigating Officer.
(c) Petitioner shall appear before the Investigating Officer as and when required and shall also co-operate with the investigation.
(d) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim.
(e) Petitioner shall not commit any similar offences while he is on bail.
(f) Petitioner shall not leave India without the permission of the Court having jurisdiction.
In case of violation of any of the above conditions or if any modification or deletion of the conditions are required, the jurisdictional Court shall be empowered to consider such applications if any, and pass appropriate orders in accordance with law, notwithstanding the bail having been granted by this Court.
Sd/-
BECHU KURIAN THOMAS JUDGE vps B.A. No.6528/25 10 2025:KER:38995 APPENDIX OF BAIL APPL. 6528/2025 PETITIONER ANNEXURES Annexure A TRUE COPY OF THE FIR IN CRIME NO. 267/2025 OF NEDUMBASSERY AIRPORT POLICE STATION DATED 11/03/2025.
Annexure B TRUE COPY OF THE ORIGINAL PETITION IN O.P NO.
761/2023 ON THE FILE OF FAMILY COURT
ERNAKULAM.
Annexure C TRUE COPY OF THE G.O.(P) NO. 119/2023 OF
FAMILY COURT ERNAKULAM.
Annexure D TRUE COPY OF THE COUNSELING REPORT IN MEDICAL
COLLEGE HOSPITAL, ERNAKULAM DATED 27/09/2024.
Annexure E THE TRUE COPY OF THE ORDER IN
CRL.M.P.1299/2025 OF ADDL. DISTRICT AND
SESSIONS COURT [SPECIAL COURT FOR POCSO
OFFENCES] DATED 25-4-2025.
Annexure F THE TRUE COPY OF THE CERTIFICATE ISSUED BY
DR. BALA MURALIKRISHNA K.S, A CONSULTANT
ONCOLOGIST DATED 29/5/2025
Annexure G THE TRUE COPY OF THE MEDICAL CERTIFICATE
ISSUED BY DR. BINU UPENDRAN DATED 30/5/2025