Bail Appl. No. 713 of 2023

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 14[TH] DAY OF MARCH 2023 / 23RD PHALGUNA, 1944 BAIL APPL. NO. 713 OF 2023 ``` ## **`CRIME NO.942/2022 VIYYUR POLICE STATION, THRISSUR`** ## **`APPLICANT/ACCUSED`** ``` XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. SRUTHY N. BHAT P.M.RAFIQ AJEESH K.SASI M.REVIKRISHNAN NIKITA J. MENDEZ RAHUL SUNIL SRUTHY K.K P.VIJAYA BHANU (SR.) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM., PIN – 682031 ``` ``` BY ADV PUBLIC PROSECUTOR ADV M. P. PRASANTH - PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 713 OF 2023 ``` ``` 2 ``` ## **`ORDER`** The petitioner is the accused in Crime No.942/2022 of Viyyur Police Station. The offences alleged against the petitioner are under Section 354 of IPC, Section 10 read with 9(c) of the POCSO Act and Sections 3(1)(w)(i) and 3(2)(v)(A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. The prosecution case against the petitioner is as follows: The petitioner is a Physical Education Teacher in the school where the victim is studying. On a day in November, 2022, the petitioner allegedly touched the victim's chest inappropriately while she was in the school's staff room. The crime was registered based on the information furnished by the victim, who is aged 13 years. This application for anticipatory bail is submitted in such circumstances as the petitioner apprehends arrest. 3. Heard Sri. P. Vijaya Bhanu, The learned counsel appearing for the petitioner and Sri.M.P. Prasanth, the learned Public Prosecutor for the State. As per the order dated 01.02.2023, this Court directed the Station House Officer concerned to serve notice of the bail application ``` BAIL APPL. NO. 713 OF 2023 ``` ``` 3 ``` to the victim, showing the next posting date as 08.02.2023. In compliance with the aforesaid direction, the Station House Officer served the notice to the victim on 04.02.2023 and a memo dated 21.02.2023 was filed before this Court. However, there is no appearance for the victim. 4. The learned senior counsel for the petitioner contends that the petitioner is innocent of all the allegations. According to him, the complaint was submitted because of certain differences of opinion between the petitioner and the Student Counsellor in the school, in connection with the suspension of an 8th-standard boy from the school. This prompted the student counsellor to instigate the victim to submit a complaint with false allegations. It is further pointed out that even going by the statement of the victim, the question as to whether the act allegedly committed by the petitioner was with any sexual intent or not is highly doubtful. Therefore, the learned counsel for the petitioner seeks anticipatory bail. He further states that he is prepared to abide by any conditions imposed by this Court and is willing to cooperate with the investigation. ``` BAIL APPL. NO. 713 OF 2023 ``` ``` 4 ``` 5. On the other hand, the learned Public Prosecutor seriously opposes the aforesaid application. It is further pointed out that, going by the statement of the victim, there are specific allegations of sexual assault and the matter is now under investigation. Therefore, if the petitioner is granted anticipatory bail, that would adversely affect the investigation, which is ongoing and hence the dismissal of the application is sought. 6. I have gone through the records and heard the contentions raised from both sides. First of all, it is to be noted that this is a case in which offences under the provisions of _Scheduled Castes_ and the _Scheduled Tribes_ (Prevention of Atrocities) _Act_ , 1989 have been incorporated. As per the statutory stipulations, in SC/ST Act, no application for bail is maintainable. However, in **Renoj R.S. v. State of Kerala [2022 (6) KLT 352]** , this Court categorically observed that in cases where offences under the POCSO Act are also incorporated in addition to the offences under SC/ST Act, the application for anticipatory bail can be maintained by the accused, since the POCSO Act being a special enactment, would prevail over the stipulations ``` BAIL APPL. NO. 713 OF 2023 ``` ``` 5 ``` contained in SC/ST Act. As section 31 of the POCSO, contemplates the application of the provisions of the Cr. P.C, when a person is accused of offences under both the enactments referred above, he shall be entitled to maintain an application under section 439 of the Cr. P.C for pre-arrest bail. I am in full agreement with the observations made by this Court in the aforesaid decision and therefore, I find that even though the offence under the SC/ST Act is also incorporated, since the FIR contains the offences under POCSO Act also, (which are the predominant offences), the application can be maintained by the petitioner herein. 7. When coming to the merits of the bail application, it is to be noted that the specific case of the learned counsel for the petitioner is that, this is a falsely foisted case and the complaint itself was submitted at the instigation of the Student Counsellor in the school. However, adjudication of the aforesaid question cannot be made at this stage, being a bail application and the matter is under investigation. But it is a crucial aspect to be noted that, in the statement of the victim, she had stated that besides the assaults committed upon her, she also witnessed an incident in which the petitioner was found kissing another student. ``` BAIL APPL. NO. 713 OF 2023 ``` ``` 6 ``` Along with the documents relating to the case, the statement of the student referred to by the defacto complainant was also brought to my notice. On going through the same, it is seen that the said student had specifically denied the aforesaid allegation and she had categorically stated that the petitioner did not subject her to any sexual acts. Apart from the above, on going through the statement of the victim, the allegation is that the petitioner had touched inappropriately on the chest of the victim. The crucial question is whether the aforesaid act was with any sexual intention or not. It is an undisputed fact that an incident occurred in the staff room. While considering the entire facts and circumstances of the case and also taking note of the statement of the student whose reference was made in the FIS of the victim, I am of the view that the denial of the relief to the petitioner in this case, may not be proper. The question whether the act allegedly committed by the petitioner was with sexual intent or not is a doubtful aspect as of now and it is to be investigated. I do not find any justification to authorize the detention of the petitioner based on the aforesaid statement of the victim alone, in the facts and circumstances of the case. In such ``` BAIL APPL. NO. 713 OF 2023 ``` ``` 7 ``` circumstances, I am of the view that the interest of justice would be served, if the cooperation of the petitioner with the investigation is ensured. In the result, the application is allowed on the following conditions:- 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 a bond for Rs 1,00,000/- (Rupees One Lakh only) with two sureties each for the like sum, to the satisfaction of the Investigating Officer iii) The petitioner shall fully cooperate 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 Saturday until the filing of the final report. ``` BAIL APPL. NO. 713 OF 2023 ``` ``` 8 ``` v) The petitioner shall appear before the Investigating Officer as and when required. 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 Jurisdictional 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 ``` scs ``` 9 ``` ## **`BAIL APPL. NO. 713 OF 2023`** ## **`APPENDIX OF BAIL APPL. 713/2023`** ## `PETITIONER ANNEXURES` ``` SEALED COVER 1TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME NO.942/2022 OF VIYYUR POLICE STATION, THRISSUR SEALED COVER 2TRUE COPY OF THE COMPLAINT PREFERRED BY THE TEACHERS SEALED COVER 3TRUE COPY OF THE COMPLAINT DATED 12.12.2022 PREFERRED BY THE APPLICANT TO THE HEADMISTRESS SEALED COVER 4TRUE COPY OF THE COMPLAINT PREFERRED BY THE TEACHERS, TO THE STATION HOUSE OFFICER, VIYYUR SEALED COVER 5CERTIFIED COPY OF THE ORDER DATED 06.01.2023 IN CRL.M.P. NO.4383/2022 BEFORE THE COURT OF THE I ADDITIONAL SESSIONS JUDGE, THRISSUR ```