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## **`BAIL APPL. NO. 1840 OF 2024`**
## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE C.S.DIAS**
**TUESDAY, THE 6[TH] DAY OF AUGUST 2024 / 15TH SRAVANA, 1946**
**BAIL APPL. NO. 1840 OF 2024 CRIME NO.833/2022 OF MAYYIL POLICE STATION, Kannur**
## **PETITIONER/ACCUSED:**
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ABDUL SALAM PUTHIYA PURAYIL,
AGED 43 YEARS
S/O. MOIDEEN, NAHALAS HOUSE,PALLIPARAMBA,
KOLACHERI AMSOM, KANNUR DISTRICT, PIN - 670601
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BY ADVS.
NIKITA J. MENDEZ
P.M.RAFIQ
M.REVIKRISHNAN
AJEESH K.SASI
SRUTHY N. BHAT
RAHUL SUNIL
SRUTHY K.K
SOHAIL AHAMMED HARRIS P.P.
NANDITHA S.
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## **`RESPONDENT:`**
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
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## **`OTHER PRESENT:`**
## **`SR PP SRI C S HRITHWIK`**
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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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BAIL APPL. NO. 1840 OF 2024
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Dated this the 6 day of August, 2024
## **O R D E R**
The application is filed under Section 438 of the Code of Criminal Procedure, 1973( in short ‘Code’), for an order of pre-arrest bail.
2.The petitioner is the sole accused in Crime No.833/2022 of the Mayyil Police Station, Kannur which is registered against him for allegedly committing the offences punishable under Section 377 of the Indian Penal Code, 1860 (IPC), Section 3 (a) r/w Section 4(2)of the Protection of Children from Sexual Offences Act (in short, ‘ the POCSO Act’) and Section 77 of the Juvenile Justice (Care and Protection of Children) Act.
- 3.The gist of the prosecution case is that: on
13.01.2022, in the months of April and June, 2022, the accused had taken the victim, a 16 year old boy, in a
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## **`BAIL APPL. NO. 1840 OF 2024`**
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car bearing registration No. KL 59A -8024 and committed carnal intercourse and penetrative sexual assault on the victim. Subsequently, on 18.11.2022 and following two days, the accused again subjected the victim to penetrative sexual assault. Thus, the accused has committed the above offences.
4.Heard; Sri. P.Vijayabhanu, the learned Senior Counsel appearing for the petitioner and Sri.C.S. Hrithwik, the learned Senior Public Prosecutor.
5.The learned Senior Counsel for the petitioner strenuously argued that the petitioner is innocent of the allegations attributed against him. The above crime has been registered on a total misconception of facts. In fact, the victim has made similar random complaints against various persons. The very same police has registered Crime Nos.834/2022 and 836/2022 against two other persons, at the behest of the victim, for allegedly committing similar offences
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almost at the same dates. This by itself proves the falsity and frivolity in the present crime. The petitioner is a law abiding citizen without any criminal antecedents. The petitioner is employed in Muscat, and it is only recently the petitioner has come down to India. The petitioner has learnt that the investigation in the case is complete and the final report has been laid before the jurisdictional court. Therefore, the petitioner’s custodial interrogation is not necessary, and no medical examinations have to be conducted. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed.
6.The learned Public Prosecutor opposed the application. He submitted that there are prima facie materials to substantiate the petitioner’s involvement in the crime. Immediately after the incident, the petitioner absconded from India and was all
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throughout in Muscat. It is only recently that he has come to India and filed the present application. The case is now pending before the Special Judge for the trial of offence under POCSO Act, Thalassery as S.C. No.233/2023. If the petitioner is granted an order of pre-arrest bail, he may intimidate the victim and tamper with evidence. Hence, the application may be dismissed.
7. On an evaluation of the materials on record, it can be deciphered that the victim has alleged that the petitioner has committed carnal intercourse and penetrative sexual assault on him. The materials produced by the Investigating Officer also shows that, almost during the very same period, the victim has alleged that he was also subjected to carnal intercourse by two other persons and consequently Crime Nos. 834/2022 and 836/2022 are registered on the very same set of allegations. This creates a cloud
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on the allegation made by the victim in the present crime. However, that is a matter to be decided after trial. Indisputably, the investigation in the case is complete and the final report has been laid before the jurisdictional court. The petitioner is ready and willing to abide by any stringent condition that may be imposed by this Court and co-operate for concluding the trial in the case.
8. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the peculiar facts and circumstances of the case, wherein the very same victim has made the same set of allegations against three persons almost at the same period, I am convinced that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I am inclined to allow the application; subject to the
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condition that the petitioner co-operates with the Investigating Officer.
In the result, the application is allowed subject to the following conditions:
(i)The petitioner is directed to surrender before the Investigating Officer within 10 days from today.
(ii)In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties for the like amount each;
(iii)The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer.
(iv)The petitioner shall not directly or indirectly make any inducement, threat or procure 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
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Police Officer or tamper with the evidence in any manner, whatsoever;
(v)The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before the said court within the said period;
(vi)The petitioner shall not get involved in any other offence while on bail;
(vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law.
(viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below.
(ix) Needless to mention, it would be well
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within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And another** [2020 (1) KHC 663].
(x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts.
SD/-
## **C.S.DIAS,JUDGE**
rmm6/8/2024
