Ayoobkhan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 15TH DAY OF NOVEMBER 2019 / 24TH KARTHIKA, 1941** ## **Bail Appl..No.8163 OF 2019** **AGAINST THE ORDER IN CMP 3741/2019 DATED 20-09-2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,KOTTARAKKARA** **CRIME NO.1450/2019 OF EZHUKONE POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED:** **AYOOBKHAN, AGED 28 YEARS** **S/O.YOOSUFKUTTY, JAFAR MANZILIL, MIYANNUR MURI, PALLIMON VILLAGE, (NOW RESIDING AT JASINA MANZILIL, VAKKANADU P.O., KAREEPRA VILLAGE), KOLLAM DISTRICT.** **BY ADV. SRI.H.PRAVEEN (KOTTARAKARA)** ## **RESPONDENT/STATE:** **STATE OF KERALA,** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31.** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A. No.8163 of 2019 2 ## **ALEXANDER THOMAS, J. =========================== B.A. No.8163 of 2019** **===========================** Dated this the 15[th] day of November, 2019 ## **ORDER** The petitioner herein has been initially arrayed as accused No.1 among the two accused in the instant Crime No.1450/2019 of Ezhukone Police Station, which has been registered for offences punishable under Sections 451, 511 of Sec. 376, 354, 354B, 506, 509 and Sec.34 of the IPC on the basis of the First Information Statement given by the mother of the mentally disabled lady victim on 16.9.2019 in respect of the alleged incident which happened on 02.09.2019. The petitioner has been arrested in this case on 17.09.2019 and after his remand, he has been under detention since then. 2. The prosecution case in short is that the accused persons are living in the immediate neighbourhood of the lady victim, aged 22 years, who is suffering from 70% mental disability and that on 02.09.2019 at about 3 p.m., the petitioner had criminally trespassed B.A. No.8163 of 2019 3 and barged into her residence and had assaulted her and tried to disrobe her with the intention to have forcible sexual intercourse with her against her wish and consent and the lady victim resisted it and then he was forced to flee away. Later, on 8.9.2019, the petitioner's brother (A2) had shown certain sexual gesticulations and gestures to her in order to insult her womanhood etc. The learned Public Prosecutor has submitted that the lady victim out of fear and shame had not initially reported to the police authorities about the incident of attempt to commit rape that happened on 2.9.2019 and later she had disclosed the said incident to her cousin sister ( maternal 1[st] cousin) and it was later that F.I. Statement has been given to the police on 06.09.2019 in respect of the above said incidents, which led to the registration of the instant crime. The Police, after investigation, has deleted accused No.2 from the accused array in this crime and now the petitioner is the sole accused in this case. The petitioner has been arrested in this case on 17.09.2019 and, after his remand, has been under custody since then. 3. Sri.H.Praveen (Kottarakara), the learned counsel appearing for the petitioner would submit that the outer time limit for the default B.A. No.8163 of 2019 4 period for approval of the statutory right to secure default bail in terms of the prescriptions contained in the Proviso to Sec.167(2) of the Cr.P.C in relation to the present offences is 60 days from the date of remand of the accused. Further that, the petitioner has been arrested on 17.09.2019 and after his remand, he has been under detention since the last 69 days and the outer time limit for the default bail period has already expired and that the Investigating Agency has not so far completed the investigation and thus does not filed the final report/charge sheet in this case within the abovesaid default bail period and therefore the petitioner is even otherwise entitled to be released on statutory default bail, going by the mandate contained in the proviso to Sec.167(2) of the Cr.P.C. In the instant case, the maximum sentence that could be imposed on the petitioner for the offences alleged in this case is the one as per Sec.511 of Sec.376 of the IPC (attempt to commit rape). The maximum punishment for the offence as per Sec.376 of the IPC could be imprisonment for life. Sec.511 of the IPC deals with punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment and it is stipulated therein that the maximum punishment could extend upto half of the B.A. No.8163 of 2019 5 imprisonment for life, etc. Sec.57 of the IPC deals with fractions of terms of punishment and it stipulates that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. If that be the position, the maximum sentence to be imposed for the offence as per Sec.511 of Sec.376 of the IPC (attempt to commit rape) would extend upto 10 years. Going by the dictum laid down by the Three Judge Bench decision of the Apex Court in _**Rakesh Kumar Paul v. State of Assam**_ [(2017) 15 SCC 67], it has been held therein that if the maximum sentence that could be imposed for the offences in question is only upto 10 years, then the default period for such offences in terms of the Proviso to Sec.167(2) of the Cr.P.C would be 60 days from the day of remand of the accused and not 90 days therefrom. 4. On being queried, the learned Public Prosecutor has submitted that as of now, the Investigating Agency has not been able to complete the investigation and so the final report has not been filed before the competent criminal court concerned. Since that is the admitted position, the petitioner is even otherwise entitled to be released on statutory default bail, as more than 60 days have elapsed B.A. No.8163 of 2019 6 from the day of his remand on 18.09.2019. However, the learned Public Prosecutor would caution that the victim in this case is a lady aged 22 years, who is suffering from more than 70% mental disability and that there is every possibility of the petitioner abusing his freedom and intimidating and influencing the witnesses, more particularly, the victim, etc. in case, he is let out on bail. The abovesaid concern and apprehension raised by the prosecution has to be given its due weightage by this Court and accordingly, it is ordered as a safeguard that the petitioner shall not reside anywhere within the territorial limits of the police station, where the lady victim is residing, until the conclusion of the trial process in this case, subject to certain exceptions, which would be dealt with hereinafter. 5. Having heard both sides and taking note of the abovesaid aspects, it is ordered in the interest of justice that the petitioner shall be released on bail on his executing bond for Rs.40,000/- (Rupees Forty Thousand only) and on his furnishing two solvent sureties for the like sum each, both to the satisfaction of the competent court below concerned. However, the grant of bail will be subject to the following conditions: B.A. No.8163 of 2019 7 - _(i). The petitioner will report before the Investigating Officer concerned at any time between 9:00 a.m. and 1 p.m. on every 2[nd] and 4[th] Saturdays, for the next four months. Thereafter, the petitioner shall report before the Investigating Officer as and when directed by the said officer._ - _(ii). The petitioner shall fully co-operate with the investigation process and shall not intimidate or attempt to influence the defacto complainant/victim, witnesses; nor shall tamper with the evidence._ - _(iii). The petitioner shall not commit any similar offence while on bail._ - _(iv). The petitioner shall not visit or go anywhere near the residence of the lady victim_ - _(v). The petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the lady victim is residing, until the conclusion of the trial process in this case, except for the limited purpose of reporting before the Police in connection with the abovesaid crime or any other crimes or for attending any courts in relation to this case or for contacting lawyer/ Advocate concerned._ - _(vi). However, in case, the petitioner has any genuine emergent and personal needs to visit the said area, he may do so only with the prior permission of the Investigating Officer._ 6. In case, the petitioner violates any of the above conditions, the jurisdictional Court concerned will stand hereby empowered to consider the application for cancellation of bail, if required, and pass appropriate orders in accordance with law. B.A. No.8163 of 2019 8 With these observations and directions, the above Bail Application will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd