Annakutty v. John @ Thankachan and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 25TH DAY OF JULY 2013/3RD SRAVANA, 1935** ## **Crl.MC.No. 2569 of 2013 ()** **-------------------------------------** **AGAINST THE ORDER IN CRMP 2373/2013 of SESSIONS COURT,THALASSERY CRIME NO. 161/20013 OF KUDIYANMALA POLICE STATION , KANNUR** **----------------** ## **PETITIONER/DEFACTO COMPLAINANT:** **--------------------------------------------------------** **SMT. ANNAKKUTTY, W/O.ABRAHAM, AGED 55 YEARS, PUTHENPURAKKAL HOUSE, VAYAKKARA, KAITHAPRAM P.O., KANNUR DISTRICT.** **BY ADVS.SRI.P.NARAYANAN SRI.NICHOLAS JOSEPH** ## **RESPONDENT/ACCUSED AND COMPLAINANT:** **-------------------------------------------------------------------** **1. JOHN @ THANKACHAN, S/O.GEORGE, 58 YEARS, THANOPARAMB HOUSE, MUNDALAM P.O. NADUVIL, KANNUR DISTRICT.** ## **2. STATE OF KERALA,** **THROUGH STATION HOUSE OFFICER, KUDIYANMALA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI R2 BY PUBLIC PROSECUTOR SRI. ROY THOMAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25-07-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **PJ** ## **Crl.MC.No. 2569 of 2013 () -------------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES** **ANNEXURE 1: COPY OF THE STATEMENT OF ANUMOL TAKEN BY THE CWC ON 3/6/2013.** - **ANNEXURE 2: COPY OF THE MEDICAL EXAMINATION REPORT OF ANUMOL.** - **ANNEXURE 3: COPY OF THE FIR.NO.161/2013 OF KUDIYANMALA POLICE STATION.** - **ANNEXURE 4: COPY OF THE BAIL APPLICATION CRL.M.P.2373/2013 FILED BY ADV.SAJI ZACHARIAS.** - **ANNEXURE 5: COPY OF THE AFFIDAVITS OF SONIA AND LISSY AND THE VAKALAT OF ADV.A.V.KESAVAN, FILED BEFORE THE SESSIONS COURT THALASSERY.** - **ANNEXURE 6: COPY OF THE ORDER DATED 5/6/2013 IN CRL.M.P.2373/2013 ON THE FILE OF SESSIONS COURT THALASSERY.** - **ANNEXURE 7: COPYH OF THE APPLICATION DATED 6/6/2013 SUBMITTED BY THE PETITIONER BEFORE THE CWC.** ## **RESPONDENTS ANNEXURE** **NIL.** ## **/ TRUE COPY /** ## **P.S. TO JUDGE** **PJ** ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2569 of 2013 - - - - - - - - - - - - - - - - - - Dated this the 25[th] day of July, 2013. ## ORDER This case reflects a typical instance of non-application of mind while granting bail in respect of offences which are of serious nature and for the prevention of which a special Act has been promulgated by the Legislature. 2. The petitioner is the paternal grandmother of the victim. The victim was staying with the paternal grandmother. It so happened that she was taken by her mother to her house. Maternal grandmother was working as a house maid of the first respondent herein. One week after the mother had taken the child with her to her house, the paternal grandmother went to meet the child. It is stated that the child insisted that she wanted to go along with the paternal grandmother and the child was brought back to her house. It is alleged that while bathing the child, the child complained of pain in her private part and ultimately it was revealed that the Crl.M.C. 2569/2013. 2 accused had sexually assaulted the child. The matter was brought to the notice of the Child Welfare Committee which conducted an enquiry and took the statement of the child and complaint was lodged before the police and crime was registered for offences punishable under Sections 4 and 6 of the Protection of Children from Sexual Offences Act (herein after referred to as 'Act 32 of 2012') against the first petitioner who is alleged to have committed the act. He was arrested and produced before the court concerned. Surprisingly enough, on the very same day of production, it seems that the mother of the victim as well as her maternal grandmother filed affidavits stating that the allegations are totally false and no act has been committed by the first respondent to the child which would constitute an offence. 3. There is an allegation by the petitioner that the Assistant Public Prosecutor concerned, who usually endorses 'opposed' in the copy of the petition given to him, in this case Crl.M.C. 2569/2013. 3 refrained from doing so and simply endorsed only “received”. That was taken by the learned Sessions Judge as an indication of not opposing the petition. 4. Accepting the affidavits of the mother and the maternal grandmother and taking the view that the Assistant Public Prosecutor is not opposing the petition, it would appear that without going through the records and without understanding the nature of the offences attributed to the first respondent and also without ascertaining the competency of the persons whose affidavits were received, bail was granted to the first respondent on the same day itself. 5. The said order is assailed before this court. 6. Learned counsel appearing for the petitioner pointed out that this is a well organized move of the accused who wielded considerable influence over the mother and grandmother of the child as could be discerned from the affidavits filed by them. It is unfortunate, according to the Crl.M.C. 2569/2013. 4 learned counsel, that in a case where serious offences are disclosed, the matter is taken so lightly by the court below. Learned counsel brought to the notice of this court the decisions reported in Puran v. Rambilas ((2001) 6 SCC 338), Shaji P. Antony v. State of Kerala (2006(1) K.L.T. 331), Aniben v. Krishnankutty (2012 (2) K.L.J. 748) and Kanwar Singh Meena v. State of Rajasthan (AIR 2013 SC 296). Based on the above decisions, it was contended that this court is empowered to cancel the bail under the circumstance and also that the principles to be followed at the time of granting bail have been overlooked by the court below. 7. Learned counsel appearing for the first respondent who has been granted bail by the court below has pointed out that once bail has been granted, unless exceptional circumstances are shown, cancellation of bail is not warranted. It is pointed out that none of the conditions which are usually taken note of for cancellation of bail was Crl.M.C. 2569/2013. 5 available in the case on hand. Learned counsel pointed out that in fact the first respondent is a victim of matrimonial fight between the father and mother of the child. It was also pointed out that normally no mother would support an accused who has committed the offence as alleged and the fact that she has sworn to affidavit would clearly show that the first respondent has been falsely implicated. Relying on the decision reported in Biju v. State of Kerala (2000(2) K.L.T. 495), learned counsel pointed out that unless there are exceptional circumstances, this court will not be justified in interfering with the bail granted by the court below. 8. Act 32 of 2012 has been promulgated with a specific purpose and object. It seeks to protect the interests of children from sexual abuse. It is in this context that the issue involved in this proceedings will have to be viewed. 9. As per the records available before this court, it is seen that the child, who is the victim, was only aged 5 years Crl.M.C. 2569/2013. 6 at the relevant time. The allegation is that she was sexually abused by the first respondent herein. The paternal grandmother of the child, with whom the child was living at the relevant time, had complained to the Child Welfare Committee, who conducted an enquiry and also had taken statement of the victim. Being satisfied of the fact that there was sexual abuse, the Committee preferred a complaint to the police and registered crime as Crime No.161 of 2013 of Kudiyamala Police Station. 10. There can be no doubt that Sections 4 and 6 of Act 32 of 2012 deal with serious offences as could be seen from a mere reading of those Sections. 11. It is surprising to note that the court below, without evaluating the relevant aspects and merely based on the affidavits sworn to by the mother of the victim and the maternal grandmother and also taking a view from the endorsement made by the APP, granted bail without Crl.M.C. 2569/2013. 7 application of mind. There is nothing to show that the defacto complainant was informed about the bail application and also the so-called affidavits filed by the mother and the maternal grandmother of the child. It is significant to notice that even going by the affidavits filed by the mother and the maternal grandmother, copies of which are produced by the petitioner before this court, they were being looked after by the first respondent. Thus, there is considerable force in the submission that they could easily be influenced and could be managed to swear to affidavits. The lower court should have been very slow in accepting those affidavits. 12. The court below ought to have applied its mind to the facts of the case. It does not appear to have even taken note of the nature of the offence alleged to have been committed by the accused. In the decision reported in Kanwar Singh Meena v. State of Rajasthan (AIR 2013 SC 296) the Apex court had occasion to observe as follows: Crl.M.C. 2569/2013. 8 “That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration.” 13. It is true that cancellation of bail is not a matter of course. But when glaring circumstances indicating non-application of mind and also that the order granting bail has taken irrelevant factors into consideration, necessarily the matter will have to be viewed seriously. In the case on hand, it is evident that the affidavits were managed and bail was obtained in a case where normally bail would not have been granted considering the gravity and serious nature of the offences alleged to have been committed by the accused. Crl.M.C. 2569/2013. 9 14. It is true that in the decision reported in Biju v. State of Kerala (2000(2) K.L.T. 495) relied on by the learned counsel for the first respondent, the parameters for cancellation of bail have been considered in detail and the decision of the Apex Court in Dolat Ram v. State of Haryana (1995 SCC (Cri.) 237) has been referred to. 15. The facts of the present case have already been referred to. If bail is granted in such casual manner without adverting to the nature of the offences and also the other factors and circumstances of the case, it would be defeating the very object and purpose of the Act. Moreover, it is clear from the order of the court below that there is no application of mind and irrelevant factors have been taken into consideration. This court refrains from making any comments regarding the conduct of the APP. However, the court below ought to have addressed itself to the question of granting bail in reference to offences of such serious nature and also Crl.M.C. 2569/2013. 10 should have taken care to ascertain the competency of the persons to file affidavits relying on which bail was granted by the court below. 16. It is felt that irrelevant factors have been taken into consideration by the court below and passed nothing short of a perverse order. In the result, this petition is allowed and the order impugned shall stand suspended and bail granted to the first respondent is cancelled and the first respondent is directed to surrender before the court below on 30.7.2013. P. BHAVADASAN, JUDGE sb.