Kerala High Court
Biju C.R vs Sub Inspector Of Police on 24 September, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941
Bail Appl..No.8379 OF 2018
CRIME NO.369/2018 OF Rajapuram Police Station , Kasargod
PETITIONER/ACCUSED:
BIJU C.R.,
AGED 37 YEARS
NELLITHARA, AJANOOR, HOSDURG,
KASARAGOD, PIN- 671315.
BY ADVS.
SRI.RAHUL SASI
SMT.NEETHU PREM
RESPONDENTS/COMPLAINANTS & STATE:
1 SUB INSPECTOR OF POLICE,
RAJAPURAM POLICE STATION ,
KASARGOD DISTRICT- 671532.
2 ANUMOL K.M, AGED 24 YEARS,
D/O KUTTIYAN, MANUVILASAM,
PUTTUVAM, PANATHUR, KASARGOD DISTRICT,
PIN-671315
3 STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM- 682031.
BY ADVS.
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
24.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A. No. 8379 of 2018
2
ALEXANDER THOMAS, J.
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B.A. No. 8379 of 2018
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Dated this the 24th day of September, 2019
ORDER
The petitioner herein has been arrayed as the sole accused in the instant Crime No.369 of 2018 of Rajapuram Police Station, Kasaragod, which has been registered for the offences punishable under Secs.366A, 376, 323, 506(i) of IPC and Sec.119(b) of the KP Act 2011, on the basis of F.I Statement given by the lady victim on 14.11.2018 at about the 6.30 p.m, in respect of alleged incidents, which had happened on the period from 01.11.2012 to 25.10.2018.
2. The prosecution case, in short, is that the date of birth of the lady victim in this case is 04.04.1994 and in that November, 2012 she become acquainted with the petitioner/accused then aged 30 years and they started an affair and petitioner assured her that he would marry her and had sexual intercourse with her on various occasions and that he had threatened her that he has some of her obscene video pictures and that he divulge it on that basis he had demanded sex with her and that she had complained to the parents and that she came to know that the petitioner is a married man with two children and that later in B.A. No. 8379 of 2018 3 October, 2015 she decided to get marry to another person and the petitioner threatened to divulge her naked photographs etc. Further it is stated in Anx.A1 FIS that the some time in November, 2015 her father had given a complaint to the (SMS) Deputy Superintendent of Police, Kasaragod against the petitioner's conduct, etc.
3. The learned counsel for the petitioner would point out that the above said allegations are false and fabricated and that even going by the prosecution case, her date of birth is 04.04.1994 and that she has completed the age of 16 years as on 04.04.2010 and completed the age of 18 years as on 04.04.2012 and that the provisions of POCSO Act had come into force only on 14.11.2012 and that the amended provisions of 375 and and 376 of IPC had come into force 03.02.2013. Further that specific case of the prosecution is that she became acquainted with the petitioner for the first time in November, 2012 and even as on that date that she had attained then prescribed consenting age of 16 years and even completed age of 18 years. Further that it is clearly stated by the victim girl in Anx.A1 FIS that father/parents of the girl has filed a complaint against the petitioner's conduct in November,2012 to DYSP concerned and that to which the victim girl had given Anx.A2, petition dated 23.12.2015 to the DYSP stating that B.A. No. 8379 of 2018 4 the above said allegations raised by her parents against the petitioner are factually wrong. Further that, the above said version of the victim would clearly show that the allegations made in the FIS are false and fabricated and that the sexual incidents if true would have happened only on the basis of the consent of the parties and that she had already attained age of consent even before she had became acquainted with petitioner and therefore the custodial interrogation of the petitioner is not necessary for the smooth and effective conduct of the investigation of this case.
4. The learned prosecutor has seriously opposed the grant of anticipatory bail and also pointed out that the though the lady victim had stated in hereby, in Anx.A1 F.I Statement 14.11.2018 that she became acquainted with the petitioner first time in 11-02-2012, she has stated in Sec.164 of Cr.Pc stated before the learned Magistrate that she came to know the petitioner in November, 2011. The learned counsel for the petitioner point out that the above said subsequent allegations made by the victim are her improvised version and further that even it is assumed that the said period is taken as November, 2011 even then she had completed the prescribed consenting age of 16 well before November, 2011. The learned prosecutor also pointed out that there is B.A. No. 8379 of 2018 5 strong possibility of the petitioner intimidating or influencing the witnesses including the lady victim.
5. After hearing both sides and after careful evaluation of the facts and circumstances of this case, this Court is inclined to take the view that the petitioner has made out a strong probable case that his custodial interrogation is not really required for the smooth and effective conduct of the investigation in this case. However the petitioner will fully co-operate with the Investigating Officer in the interrogation process.
6. As regards the apprehension raised by the Prosecutor it is proposed to order a safeguard that the petitioner shall not enter into or reside anywhere near the lady victim is residing or working until the conclusion of the investigation process subject to certain exceptions which are dealt with hereinafter.
7. Accordingly the following directions and orders are passed. i. The petitioners will immediately personally appear before the Investigating Officer in relation to the instant Crime No.369/2018 of Rajapuram Police Station for interrogation purposes without any further delay at any rate at 9.00 am on any day on or before 09.10.2019. B.A. No. 8379 of 2018 6 ii. The petitioners will fully co-operate with the Investigating Officer in the conduct of the above interrogation process.
iii. After the interrogation process is over, in case the Investigating Officer arrests the petitioner in relation to the abovesaid crime, then he shall be released on bail on his executing bond for Rs.40,000/- and on furnishing two solvent sureties for the like sum, both to the satisfaction of the Investigating Officer concerned. However, the grant of bail will be subject to following conditions:-
i. The petitioner shall not involve in any criminal offences of similar nature.
ii. The petitioner shall fully co-operate with the investigation.
iii. The petitioner shall report before the investigating officer as and when required in that connection. iv. The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever.
v. The petitioner shall not go or visit anywhere near the residence or workplace of the lady defacto complainant until the conclusion of trial.
vi. Petitioner shall not enter into or reside anywhere B.A. No. 8379 of 2018 7 within the territorial limits of the Police Station, where the lady victim is now residing or working, until the conclusion of the investigation except for the limited purpose of reporting before the Investigating Officer or attending to any court in relation to this case or any other cases or for contacting his lawyer or advocate concerned. If the petitioner has any emergent personal need to visit the said area, he may do so, but only with the prior permission of the Investigating Officer concerned.
8. If there is any violation of the above said conditions by the petitioner then the jurisdictional court concerned will stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time.
With these observations and directions, the above Bail Application will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE KAS