BA No.710/2023

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 ``` ``` BAIL APPL. NO. 710 OF 2023 ``` ``` [CRIME NO.4/2023 OF PUTHENCRUZ POLICE STATION, ERNAKULAM IN CMP NO.37/2023 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS COURT (POCSO), MUVATTUPUZHA] ``` ## `APPLICANT/ ACCUSED:` ``` XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. P.VIJAYA BHANU (SR.) SRUTHY K.K P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI SRUTHY N. BHAT RAHUL SUNIL NIKITA J. MENDEZ ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, PIN – 682031 ``` ``` BY ADV. C.S.HRITHWIK, SR.PP ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 7.2.2023, THE COURT ON 21.02.2023 PASSED THE FOLLOWING: ``` BA No.710/2023 2 ## `ORDER` The petitioner is the accused in Crime No.04/2023 of Puthencruz Police Station, which was registered for the offences punishable under Sections 354 and 354A (10) (i) of the Indian Penal Code and also Sections 7, 8,9(d) and 10 of the POCSO Act. 2. The allegation against the petitioner is that on 01.01.2023 at 3 p.m., when the victim, a girl aged 15 years, went to the tuition centre run by the petitioner and during the tuition, the petitioner put his hands under the dusk and massaged the right thigh of the victim with sexual intention. It is also alleged that he pressed the breasts of the victim and also kissed her lips. Later, when his father came to pick her up, he again took her behind the curtains and touched her breasts, thereby committing the offences. The child reported the matter to her mother, which resulted in the matter being informed to the police, thereupon, they registered the crime against the petitioner for the offences mentioned above. This application is submitted by the petitioner in such circumstances seeking anticipatory bail as he apprehends arrest in connection with the crime. 3. Heard Sri. P.Vijaya Bhanu, the learned Senior Counsel appearing for the petitioner/accused and Sri. C.S. Hrithwik, learned Senior Public BA No.710/2023 3 ## Prosecutor appearing for the State. 4. The learned Senior Counsel contends that the petitioner is innocent of all the allegations. The petitioner is 71 years old and retired as a Principal of a Vocational Higher Secondary School. Thereafter, he served as the Principal of ACS English Medium School, Kaloor. He is a wellknown teacher of Mathematics, and he taught thousands of students, and even now, he is providing tuition for Mathematics to many students. The learned Senior Counsel also relies on Annexure 3, the National Award received by him for the best teacher from the President. He also received Rashtriya Shiksha Jyoti Samman, given by the Indian Society for Industry and Intellectual Development. According to the learned Senior Counsel, it is a story cooked up by the teenage girl to get away from the tuition classes, and she was not interested in continuing the tuition classes in the tuition centre of the petitioner. It is further contended that the offence under section 9(d) read with section 10 of the POCSO Act, which are the most severe offences alleged against the petitioner, would not be attracted against the petitioner. All the other offences alleged are with punishments for the imprisonment of less than seven years; therefore, the arrest of the petitioner cannot be affected automatically. It can be affected only if it is BA No.710/2023 4 absolutely necessary and in the circumstances, as explained by the Honourable Supreme Court in **Arnesh Kumar v. State of Bihar [ (2014) 8 SCC 273]** , compliance of which was insisted by the Apex Court in **Satender Kumar Antil v. Central Bureau of Investigation and another** **[(2022) 10 SCC 51]** . It is contended that the petitioner is prepared to abide by any conditions imposed by the court, and hence petitioner seeks the order of pre-arrest bail. 5. The learned Public Prosecutor, on the other hand, would seriously oppose the aforesaid contentions and prayers. According to him, the victim had clearly mentioned the sexual assaults committed by the petitioner. Besides the FIS, the said details were reiterated by the victim in her statement under section 164 of the Cr.P.C as well. With regard to the credentials of the petitioner as highlighted by the learned Counsel for the petitioner, it was pointed out by the learned Public Prosecutor that the acts allegedly committed by the petitioner were not expected from such a person and in the light of the specific allegations, the release of the petitioner on bail would send a wrong message to the society. The investigation is only at its preliminary stage, and releasing the petitioner on bail at this stage would cause difficulties for the investigation officer in BA No.710/2023 5 conducting the investigation, contends the learned Public Prosecutor. The copies of the FIS, statement of the victim under section 164 Cr.P.C, statement of the investigation officer etc., were made available for perusal. 6. I have gone through the records and heard the contentions raised from either side. One of the crucial contentions is that the most severe offence, i.e. offence under section 9(d) read with 10 of the POCSO Act, would not be attracted. As per the said provision, the sexual assault would become ‘aggravated sexual assault’ attracting a higher degree of punishment, if the person who commits the offence is in the management or on the staff of a jail or remand home or protection home or observation home, or other place of custody or care and protection established by or under any law for the time being in force. In this case, the petitioner was conducting a tuition centre, and the incident occurred in the said tuition centre. From the materials placed on record, it is highly doubtful whether it would come under any of the institutions referred to in Section 9(d) of the POCSO Act so as to attract the said offence. However, I do not intend to make any specific conclusion at this juncture, as the matter is under investigation, and we are now concerned with the question whether the powers of this court under section 438 of the Cr.P.C is to be invoked BA No.710/2023 6 or not. 7. As pointed out by the learned Public Prosecutor, the statements of the victims reveal sexual assaults. The learned counsel for the petitioner contends that those were allegations raised by a teenage girl to escape from the tuition centre, without being aware of the seriousness of such allegations. It is further pointed out that the petitioner had an unblemished career extending to several decades, and so far, he has taught thousands of students, and he is facing such an allegation for the first time at the advanced age of 71 years. Since the offences alleged are punishable with imprisonment less than or extends to seven years, reliance was also made on **Arnesh Kumar’s Case (Supra) and Satender Kumar Antil’s case (Supra).** In both decisions, the Honourable Supreme Court observed the necessity of taking a different yardstick, a less rigorous one, while considering the question of bail to a person accused of offences punishable with imprisonment for less than or extends to seven years. The principles that are enunciated in Arnesh Kumar’s case (supra) are to the effect that the police officer, before the arrest of a person (even if he finds that the accused committed the offence), should be satisfied that such arrest is necessary to prevent such person from committing any further offence, or BA No.710/2023 7 for proper investigation of the case, or to prevent the accused from causing evidence to disappear or to tamper with evidence, or to prevent any person from disclosing the fact to the investigation officer or court, by influencing or threatening him or for ensuring his presence before the court. 8. When applying the above criteria to the facts of this case, I am of the view that the petitioner can be released on bail in this case by incorporating stringent conditions. The reasons which prompt this Court to arrive at such a finding are as follows: The petitioner is a person aged 71 years without any criminal antecedents. The chances of the petitioner influencing the witnesses are highly unlikely, and the said apprehension can be addressed by incorporating appropriate conditions. The petitioner is a person who has led a public life of good reputation so far, and he has roots in the community ( _which is treated as one of the relevant criteria for releasing the accused on bond in Hussainara Khatoon v. State of Bihar [(1980) 1 SCC 81]_ ), which prevents him from running away from the investigation and further proceedings. The allegation does not reveal the necessity of any custodial interrogation of the petitioner, and it would be sufficient if the cooperation of the petitioner with the investigation is ensured. As far as the genuineness of the allegations is concerned, it is a matter of BA No.710/2023 8 investigation, which is required to be expedited, for which the petitioner's co-operation is required. In such circumstances, this application is disposed of with the ## following directions; - i The petitioner shall surrender before the Investigating Officer, within a period of two weeks from today, for subjecting himself to interrogation; - ii After interrogation, the petitioner shall be released on bail on the very same day of surrender upon the petitioner executing bonds for Rs.1,00,000/- with two solvent sureties each for the like sum, to the satisfaction of the Investigating Officer; - iii The petitioner shall fully co-operate with the investigation, including subjecting himself to the deemed police custody for the purpose of recovery, if any, as and when demanded; - iv The petitioner shall appear before the Investigating Officer between 10.00 a.m. and 11.00 a.m. every Wednesday until further orders; - v The petitioner shall also appear before the Investigating Officer as and when required; BA No.710/2023 9 (vi) The petitioner shall not commit any offence of similar nature while on bail; (vii) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation; (viii) The petitioner shall not leave the State of Kerala without the permission of the trial Court. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. Sd/- **ZIYAD RAHMAN A.A. JUDGE** pkk BA No.710/2023 10 ## APPENDIX ## PETTIONER’S ANNEXURES SEALED COVER-1 TRUE COPY OF THE ORDER IN CRL.MC NO.37/2023 ON THE FILE OF THE COURT OF SPECIAL JUDGE, (POCSO), MUVATTUPUZHA DATED 17.01.2023 SEALED COVER -2 TRUE COPY OF THE FIR AND FIS DATED 1.1.2023 REGISTERED BY THE PUTHENCRUZ POLICE STATION IN CRIME NO.4/2023 SEALED COVER -3 PHOTOCOPY OF THE CERTIFICATE SEALED COVER -4 PHOTOGRAPHS OF THE PLACE IN WHICH THE TUITIONS WERE CONDUCTED