Kerala High Court
Thankamma Nelliyaniyil vs State Of Kerala on 14 March, 2017
Author: B.Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 14TH DAY OF MARCH 2017/23RD PHALGUNA, 1938
Bail Appl..No. 1667 of 2017 ()
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CRIME NO. 152/2017 OF KELAKOM POLICE STATION , KANNUR
PETITIONER/ACCUSED NO.2:
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THANKAMMA NELLIYANIYIL
AGED 53 YEARS, W/O.JOSEPH, NELLIYANIYIL,
KOTTIYOOR, KANNUR DISTRICT.
BY ADVS.SRI.K.RAMAKUMAR (SR.)
SMT.BIMALA BABY
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.S.RAJEEV
RESPONDENT/STATE/COMPLAINANT:
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1. STATE OF KERALA
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.682 031
(CRIME NO.152/2017 OF KELAKOM POLICE STATION,
KANNUR DISTRICT)
2. THE STATION HOUSER OFFICER,
KELAKOM POLICE STATION, KANNUR DISTRICT
PIN - 670 674
(CRIME NO. 152/2017 OF KELAKOM POLICE STATION,
KANNUT DISTRICT)
BY DGP. SRI C K SREEDHARAN NAIR
SR.G.P.SRI SUMAN CHAKRAVARTHY
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14-03-
2017, ALONG WITH BA 1626/2017 & CNNCTD CASES. THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
B.SUDHEENDRA KUMAR, J.
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Bail Application Nos.1667, 1626, 1706
and 1771 of 2017
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Dated this the 14th day of March 2017
O R D E R
The petitioners are accused Nos.2, 8, 9 and 10 in Crime No.152 of 2017 of Kelakom Police Station.
2. The offences alleged in the above crime are offences under Sections 376(2)(f)(n), 370, 201, 166(A), 118, 119, 506(1) and 120(B) read with Section 34 I.P.C. and Sections 5[(j)(ii), (l),(p)], 6,8,9 (f), 10 and 16 read with Section 17 and 19(1) read with Section 21(1) of Protection of Children from Sexual Offence Act, 2012 (for short 'the POCSO Act') and Section 32(1) read with B.A.1667/2017 & cnnctd cases -: 2 :- Sections 34, 75 and 80 of Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'the Act').
3. The prosecution allegation can be briefly stated as follows:- The first accused in the crime namely, Fr.Robin Mathew, was the vicar of the local church. He comitted rape on a minor girl aged 17 years during the first week of May 2016. Thereafter, he committed rape on the minor girl on so many occasions and as a consequence, she became pregnant and delivered a child on 7.2.2017 at Christhuraja Hospital, Kelakam. The second accused was the maid servant of the first acused. The second accused obtained Rs.30,000/- from the first accused for the purpose of taking the minor to the hospital for delivery and back to the B.A.1667/2017 & cnnctd cases -: 3 :- house and also for handing over the minor child to the eighth accused. The eighth accused was the Superintendent of an Orphanage. She received the child on 7.2.2017 from accused Nos.2, 5 and 6. The eighth accused unofficially informed the matter to the Child Welfare Committee (for short 'CWC') on 7.2.2017 itself. However, the information was officially transmitted to CWC by the eighth accused only on 19.2.2017. The tenth accused was the member of CWC, who had received the child on 19.2.2017. The nineth accused was the Chairman of CWC. He was informed on 19.2.2017 itself about the receipt of the child by CWC. On 20.2.2017, the surrender document was prepared by accused Nos.9 and 10, which B.A.1667/2017 & cnnctd cases -: 4 :- was executed by the mother of the child, who is the victim in this case. Thereafter, on receipt of information from the Child Line workers, the Kelakam Police registered the above crime on 26.2.2017 at 4.30 p.m.
4. During the course of investigation, the first accused was arrested and he is still in custody.
5. The petitioners have filed these applications praying for the relief under Section 438 Cr.P.C.
6. Heard.
7. The learned Director General of Prosecution has opposed the applications stating that the custodial interrogation of the petitioners is necessary for the progress of investigation of the case. Per contra, the learned B.A.1667/2017 & cnnctd cases -: 5 :- advocates for the petitioners have submitted that all the offenes alleged against the petitioners except the offence under Section 75 of the Act and Section 370 I.P.C., are bailable offences and in the said circumstances, there is no need for custodial interrogation of the petitioners in this case. The learned advocates have further submitted that if at all there was any omission on the part of the accused persons in reporting about the delivery of the victim to the authorities concerned, the said omission was not intentional. That apart, the punishment for the said omission is only imprisonment for six months and hence, the said offence is a bailable offence, submitted by the learned advocates for the petitioners. The learned B.A.1667/2017 & cnnctd cases -: 6 :- advocates have further submitted that the petitioners herein were having the belief that the victim crossed the age of 18 years at the time of her delivery.
8. The sum and substance of the allegations against the petitioners is that even though the petitioners got information regarding the delivery of the victim on 7.2.2017, they caused long delay in reporting the matter to the police. Even though so many offences are alleged against the first accused in this case, the offences alleged against the petitioners herein are the offences under Sections 370, 201, 166(A), 118, 119, 506(1) and 120B read with Section 34 I.P.C., Sections 16, 17 and 19(1) read with Section 21(1) B.A.1667/2017 & cnnctd cases -: 7 :- of the POCSO Act and section 32(1) read with Sections 34, 75 and 80 of the Act. The offences under sections 376(2)
(f)(n) I.P.C., Sections 5[(j)(ii), (l),(p)], 6,8,9(f) and 10 of the POCSO Act are alleged only against the first accused in this case.
9. I have gone through the case diary and I find that there is absolutely no allegation in this case to primafacie constitute the offence of trafficking of persons for exploitation as provided under Section 370 I.P.C. There is no allegation or material as per the case diary to indicate primafacie that the petitioners committed the offence in trafficking of minor child in this case for the purpose of exploitation.
B.A.1667/2017 & cnnctd cases -: 8 :-
10. The offences under Sections 118 and 119 I.P.C. are not attracted in this case, as there is no allegation or material to indicate primafacie that the petitioners had concealed the design to commit the offence of rape by the first accused. Sections 16 and 17 of the POCSO Act are also not attracted against the petitioners herein as there is no allegation that the petitioners abettted the commission of the offence of rape by the first accused. The offences under Sections 166A, 201 and 506(1) I.P.C. are bailable offences.
11. Section 19(1) of the POCSO Act provides that any person, who has apprehension that an offence under the POCSO Act is likely to be committed or has knowledge B.A.1667/2017 & cnnctd cases -: 9 :- that such an offence has been committed, he shall provide such information to the Special Juvenile Police Unit or the local police. The contravention of Section 19(1) of the POCSO Act is punishable under Section 21(1) of the POCSO Act. The punishment provided under Section 21 (1) of the POCSO Act is imprisonment of either description, which may extend to six months or with fine or with both. Therefore, the said offence is also a bailable offence.
12. Section 32(1) of the Act mandates the reporting within twenty four hours regarding a child found separated from the guardian. Section 33 of the Act provides that if information regarding a child as provided under Section 32 B.A.1667/2017 & cnnctd cases -: 10 :- is not given within twenty four hours, then such act shall be regarded as an offence. In this case, the prime allegation is that even though the eighth accused had received the child on 7.2.2017, the said aspect was not officially informed to the police or CWC within the time stipulated under Section 32 of the Act. The punishment for the said offence is provided under Section 34 of the Act. Section 34 of the Act provides imprisonment upto six months or a fine of Rs.10,000/- or both, as punishment. Therefore, the said offence is also a bailable offence. Section 80 of the Act is not attracted against the petitioners herein, as there is no allegation that accused Nos.8, 9 or 10 had received the child for the purpose of adoption without B.A.1667/2017 & cnnctd cases -: 11 :- following the provisions or procedures as provided under the Act.
13. Section 75 of the Act provides that whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both. The learned advocates for the petitioners have submitted that the petitioners were not having control over the child and hence, the question of B.A.1667/2017 & cnnctd cases -: 12 :- assault, abuse or wilful neglect of the child does not arise in this case. The learned Director General of Prosecution, on the other hand, has argued that since the child was in the actual control of the eighth accused from 7.2.2017 to 19.2.2017, the eighth accused is liable to be prosecuted under Section 75 of the Act. There is no allegation or material as per the case diary indicating that the petitioners herein, including the eighth accused, had committed any of the acts mentioned in Section 75 of the Act. Thus, it appears that there is no ingredient to primafacie constitute the offence under Section 75 of the Act against the petitioners herein.
14. The tenth accused is a nun aged 70 years. She is a B.A.1667/2017 & cnnctd cases -: 13 :- paediatrician by profession. There had been no instance like the present instance during the entire career of the tenth accused as a Doctor and as a member of CWC, submitted by the learned counsel.
15. The eighth accused is also a nun aged 78 years. There is no criminal antecedent against the eighth accused, submitted by the learned counsel.
16. The nineth accused is the Chairman of CWC. On 20.2.2017, the nineth accused had done all legal formalities in the matter of dealing with the child entrusted with CWC on 19.2.2017.
17. The second accused is aged 53 years. She was only a maid servant attached to the church. She was also a B.A.1667/2017 & cnnctd cases -: 14 :- neighbour of the victim. She attended the victim in the hospital as a part of her duty and that she had nothing to do with the offence committed by the first accused, submitted by the learned counsel. The learned Director General of Prosecution has submitted that the second accused was the maid servant in the church, who had taken the victim girl from the house to the hospital and thereafter, she had taken the child from the hospital to the Orphanage of the eighth accused as instructed by the first accused. The sum and substance of the allegation against the second accused is that even though she came to know about the illegal act committed by the first accused and the consequent delivery of the victim, she did not report the matter to the Police or B.A.1667/2017 & cnnctd cases -: 15 :- reveal the same to any other person. The above allegation would constitute the offence under Section 21(1) of the POCSO Act, which is a bailable offence. There is no allegation that the second accused had aided or connived with the first accused in committing the offence of rape by the first accused.
18. The above discussion would show that the offences alleged against the petitioners except the offences under Section 370 I.P.C. and Sections 75 and 80 of the Act are bailable offences. There is also no material in this case as per the case diary to constitute the ingredients of the offences under Section 370 I.P.C. and Sections 75 and 80 of the Act against the petitioners. However, there is B.A.1667/2017 & cnnctd cases -: 16 :- accusation that the petitioners committed the above said non-bailable offences. Therefore, the petitioners have reason to believe that they may be arrested on accusation of having committed the said non-bailable offences and hence, the present application seeking for the relief under Section 438 Cr.P.C. is maintainable. There is no criminal antecedent against the petitioners. The age of the victim is also disputed by the defence. Considering the facts and circumstances of the case, including the nature of allegations, the age and the antecedents of the petitioners, I am of the view that the custodial interrogation of the petitioners is not necessary in this case for the progress of investigation of the case. In the said circumstances, an B.A.1667/2017 & cnnctd cases -: 17 :- order under Section 438 Cr.P.C. in favour of the petitioners will be justified in this case.
In the result, these applications stand allowed, and the petitioners are directed to surrender before the Inspector of Police, Peravoor Police Station on any day before 7 a.m. within five days from today, if not arrested in the meantime. If the petitioners are arrested or if the petitioners surrender before the Inspector of Police, Peravoor as directed above, the Inspector of Police concerned shall interrogate the petitioners. After completing the interrogation, the petitioners shall be produced before the Special Court on the same day.
If the petitioners are produced before the Special B.A.1667/2017 & cnnctd cases -: 18 :- Court as directed above, the court concerned shall release the petitioners on bail on the following conditions:
(i) Each of the petitioners shall execute a bond for Rs.30,000/- (Rupees thirty thousand only) each, with two solvent sureties each, each for the like sum to the satisfaction of the court concerned.
(ii) The petitioners shall report before the Investigating Officer on every Monday between 9 a.m. and 11 a.m. for two months and thereafter, as and when required by the Investigating Officer for interrogation.
(iii) The petitioners shall not get involved in any offence while on bail.
(iv) The petitioners shall not intimidate or influence the witnesses or in any way tamper with the investigation.
B.A.1667/2017 & cnnctd cases -: 19 :-
(v) The petitioners shall surrender their passport before the court simultaneously at the time of executing the bond and if any of the petitioners is having no such passport, file affidavit before the court in this regard.
(vi) The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the court or to any Police Officer.
I make it clear that I have not made any observation regarding the merits of the case and the observations made in this order are only for the purpose of disposing of this application.
B.A.1667/2017 & cnnctd cases -: 20 :- I further make it clear that if the petitioners violate any of the conditions mentioned above, the court below shall be at liberty to cancel the bail in accordance with law, without any reference to this Court, as held by the Apex Court in P.K.Shaji v. State of Kerala [AIR 2006 (SC) 100].
Sd/-
B.SUDHEENDRA KUMAR, JUDGE dl/14..3..2017 // True Copy // PA to Judge