BAIL APPL. NO. 75 OF 2023 & 91 OF 2023 (Arising out of Crime Nos. 896/2022 and 895/2022, Kalady Police Station, Ernakulam District)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945** **BAIL APPL. NO. 75 OF 2023** _**(Arising out of Crime No.896/2022 of Kalady Police Station, Ernakulam District and reregistered as Crime No. 2/2023 of Ayyampuzha Police Station, Ernakulam District)**_ **PETITIONER/S:** **XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX** **BY ADVS. VIJAI MATHEWS JOSEPH THEKKEKURUVANAL** ## **RESPONDENT/S:** **2. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN – 682031** **Addl. R-2 .XXXXXXX** **(Addl. R-2 impleaded as per order.11.3.2023 on Crl.M.A.No.3/2023 in B.A.No.75/23)** ## **OTHER PRESENT:** **R1 BY SRI. S.U. NAZAR- PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.04.2023, ALONG WITH Bail Appl..91/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945** **BAIL APPL. NO. 91 OF 2023** _**(Arising out of Crime No. 895/2022 of Kalady Police Station, Ernakulam District)**_ **PETITIONER/S:** **XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX** **BY ADVS. VIJAI MATHEWS JOSEPH THEKKEKURUVANAL** ## **RESPONDENT/S:** **11** **1.STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, PIN – 682031** **ADDL. R-2 .XXXXXXX** **(ADDL. R-2 IMPLEADED AS PER ORDER.11.3.2023 ON CRL.M.A.NO.3/2023 IN B.A.NO.91/23)** **R1 BY P.P. SRI.S.U.NAZAR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.04.2023, ALONG WITH Bail Appl..75/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS & C.S.SUDHA, JJ.** ================== B.A.No. 75/2023 _(Arising out of Crime No.896/2022 of Kalady Police Station, Ernakulam District and re-registered as Crime No. 2/2023 of Ayyampuzha Police Station, Ernakulam District)_ & B.A.No. 91/2023 _(Arising out of Crime No. 895/2022 of Kalady Police Station, Ernakulam District)._ ================== Dated this the 11[th] day of April, 2023 ## **O R D E R** ## **ALEXANDER THOMAS, J.** The same accused is involved in both the bail applications. So also, the same victim is involved in both the cases. The accused was abroad at the time of registration of the crimes in these cases. He has raised various contentions including long delay in the registration of the crime and has also alleged that the cases have been falsely foisted on him, etc. 2. The present two bail applications have come up for consideration before the learned Single Judge on 1.2.2023. Thereupon, the learned Single Judge has passed reference order dated 1.2.2023 in these two cases referring these matters also to the Division Bench to be heard along with the other earlier referred cases. The reference order dated 1.2.2023 rendered in the bail applications reads as follows: BA 75 & 91 of 23 - : 2 :- _“These Bail Applications are filed by the petitioner seeking anticipatory bail._ _2. The maintainability of these applications was challenged by the learned Public Prosecutor on the ground that the petitioner is not in India, and therefore in the light of the decision rendered by this court in Shafi S.M. v. State of Kerala and another [2020(4) KHC 510], the same cannot be entertained._ _3. On the other hand, learned counsel for the petitioner would submit that, in Vijay Babu v. State of Kerala [2022(4) KLT 24, Bail Appl. No.3475/2022] a contrary view has been taken by another learned Single Judge of this Court, wherein a bail application was found to be maintainable, even if the petitioner is not in India at the time of filing the application._ _4. It is also brought to my notice that, with respect to the said issue, based on the reference order passed by this Court in Bail Appl. No.4421/2022 dated 27.06.2022, the issue is pending before the Division bench of this Hon’ble Court. Similarly, yet another reference order was passed by another bench of this Court in Bail Appl. No.4983/2022 dated 28.06.2022 on the very same issue. Considering the fact that the matter is already pending before the Division bench based on the above-mentioned reference orders, it is only proper that these matters are also placed before the Division bench._ _In such circumstances, the Registry is directed to place these bail applications before the Hon’ble Chief Justice for passing appropriate orders in the light of the reference orders mentioned above.”_ 3. Later, reference issues in the earlier referred cases as well as the present two bail applications were heard in detail by the Division Bench. After hearing the learned Advocates concerned, the learned Public Prosecutor and the amici curiae and their assisting counsel, this Court had reserved the matters for orders. Now the Division Bench has passed common order dated 11.4.2023 in the two earlier referred cases, B.A.No. 4421/2022 and B.A.No. 4983/2022 answering the reference issues and finally disposing those two bail BA 75 & 91 of 23 - : 3 :- applications. The said order dated 11.4.2022 in B.A.Nos. 4421 and 4983 of 2022 to the extent it involved in the answering of the reference issues will regulate the present two cases as well. 4. Earlier at the admission stage, the Division Bench has passed a detailed common order dated 1.3.2023 in the instant B.A.Nos.75 and 91 of 2023 admitting these cases and ordering issuance of notice to the victim through the investigating officer concerned and also granting interim bail to the sole accused in these two cases for the detailed reasons stated therein. The said common interim order dated 1.3.2023 admitting these two cases and granting interim bail to the accused in these two cases read as follows: _“Admit both the applications._ _2. Sri.S.U.Nazar, the learned Additional Public Prosecutor, takes notice for the respondent. Issue notice to the victim through special messenger in these bail applications returnable within three days. Let an additional notice also be served on the victim in these bail applications through the investigating Officer concerned who shall report the service of notice in that regard through the learned Public Prosecutor._ _3. The aforesaid two bail applications under Section 438 Cr.P.C. have been filed by the sole accused in Crime Nos.895/2022 and 896/2022 of Kalady Police Station alleging commission of the offences punishable under Sections 354A(1)(i) IPC, Sections 8, 10 of the PoCSO Act and Section 376(2)(n) IPC respectively. When the bail applications came up before a learned single Judge, the learned Public Prosecutor relying on the dictum in Shafi S.M. v. State of Kerala, 2020(4) KHC 510 challenged the maintainability of the applications as the applicant was abroad at the time of filing the applications and he continues to be so. On the other hand, the petitioner/accused relied on the dictum in Vijay Babu v. State of_ BA 75 & 91 of 23 - : 4 :- _Kerala, 2022(4) KLT 24, in which a contrary view has been taken, that is, a bail application is maintainable even if the petitioner/accused is not in India at the time of filing the same. The learned Single Judge took note of two reference orders passed in B.A.No.4421/2022 and B.A.No.4983/2022 dated 27/06/2022 and 28/06/2022 respectively on the very same issue. Hence the Registry was directed to place the present bail applications before the Hon'ble Chief Justice for appropriate orders in the light of the aforesaid reference orders. Thus, the applications are before us._ _4. The reference is pending consideration before us. It is submitted by the learned counsel for the petitioner that the engagement of the petitioner was on 25/12/2021 and that his marriage is to be solemnised on 17/03/2023. The petitioner intends to come down to India for his marriage. However, he apprehends that the moment he lands in India, he would be arrested and hence requests for an urgent interim order before we answer the reference. In the light of the urgency cited, we proceed to consider the request for an interim order without going into the question whether the present applications are maintainable or not._ _5. Heard Sri.Vijay Mathews, the learned counsel for the petitioner/accused and Sri.S.U.Nazar, the Additional Public Prosecutor for the respondent. 6. In Crime No.895/2022 of Kalady Police Station (Annexure A1), the allegation is that in October 2012, the petitioner/accused sexually assaulted the informant by kissing as well as touching her private parts by threatening her that he is in possession of her nude videos. Thereafter in 2013, he hugged/ embraced her and then kissed her. The first assault is stated to have taken place at the residence of the informant's maternal aunt, when she was 14 years old and the second incident is at the road situated near her residence._ _7. In Crime No.896/2022 of Kalady Police Station (Annexure A2), the allegation is that the petitioner/accused during the period between 2019 to 2020, forced the informant to perform oral sex at different places by threatening her that if she did not accede to his demands, he would make public her nude videos in his possession. On another occasion, the petitioner/accused is stated to have attempted to have sexual intercourse with the informant, but the attempt failed as she resisted the said attempt._ _8. The petitioner/accused denies all the aforesaid allegations. The informant is his paternal aunt's daughter (firstcousin). However, he never had any contact with the informant because the families were at loggerheads as the marriage of the petitioner's parents is an inter-caste one. He never had any contact_ BA 75 & 91 of 23 - : 5 :- _with the informant during her minority. In the year 2016, they came into contact through social media, fell in love and decided to tie the knot. However, their marriage did not materialise due to the stiff resistance and objection to the alliance by the informant's parents, the main reason for which was the inter-caste marriage of the petitioner's parents and because the petitioner and family are not financially sound. The parents of the informant, against her wishes, married her off to another person. Thereafter the petitioner never had any contact with her. The petitioner is working in Gulf and his marriage has already been fixed. He was about to come to India for his marriage. However, the informant after coming to know that his marriage has been fixed, with the intention of troubling and unnecessarily harass him and to dissuade him from going ahead with his marriage, has filed a false complaint against him, contends the petitioner._ _9. The first crime is alleged to have taken place about 10 years back and the second one about three years back. In the FIS, the informant has not given any reason for the delay in reporting the matter. There is certainly delay in reporting the matter to the police. The informant admits that she has not revealed the incidents to anyone. According to her, of late, the petitioner with sexual intentions, is interfering in her life and trying to destroy her life by reminding her of the old nude videos in his possession._ _10. The case of the petitioner that he and the informant were in a relationship is probabilised by Annexure A3 letter, alleged to have been written by the informant and Annexure A4 series photographs. The question whether the petitioner had in fact sexually assaulted or committed rape on the informant, is not a matter to be decided at this stage and the same can be decided only after trial. As per Annexure A8, the petitioner appears to be working abroad from 2016 onwards. His last visit home appears to be on 20/12/2021 and he left India on 04/01/2022. Annexures A1 and A2 crimes are seen registered on 06/10/2022, which is apparently much after he left the country. As the petitioner's marriage is fixed to be solemnised on 17/03/2023 ; as there is possibility of his arrest on arrival and as this is not a case where custodial interrogation is necessary, we are of the opinion that an interim order for the grant of anticipatory bail can be granted to the petitioner._ _In the result, the plea for an interim order for the grant of anticipatory bail is allowed subject to the following conditions:_ _(i) The petitioner on his arrival in India, shall appear before the investigating Officer on the very next day of his arrival in_ BA 75 & 91 of 23 - : 6 :- _India and in the event of his arrest in the aforesaid crimes, shall be released on bail on his executing a bond for a sum of Rs.50,000/- for each crime separately (Rupees fifty thousand only) with two solvent sureties for the like sum each to the satisfaction of the investigating Officer. It is made clear that two separate bonds shall be executed in the two crimes._ _(ii) The petitioner shall co-operate with the investigation and appear before the investigating Officer as and when directed by him._ _(iii) The petitioner shall not intimidate or influence the witnesses in any manner or interfere with the course of investigation. He shall not approach or try to contact the informant or interfere in her affairs in any manner._ _(iv) The petitioner shall not commit any offence(s) while on bail._ _(v) The petitioner shall not leave the country without the permission of this Court. He shall surrender his passport before this Court._ _Needless to say, in the event of violation of any of the above condition(s) of bail, the investigating Officer would be at liberty to move this Court for cancellation of the interim bail._ _This order will be subject to the final result of the bail applications and also the final outcome in the reference orders._ _List the above cases along with connected matters on 14/03/2023.”_ Now we will briefly deal with the facts of these two cases. B.A.No. 75/2023: 5. In this case, based on the first information of the victim, crime was originally registered as Crime No. 896/2022 of Kalady Police Station, Ernakulam, for offences under Sec. 376(2)(n) of the I.P.C. in which the applicant herein is the sole accused. FIR has been BA 75 & 91 of 23 - : 7 :- registered on 6.10.2022. The investigating officer has filed statement dated 10.3.2023 in B.A.No. 75/2023 in which it has been inter alia stated that after the initial registration of the crime as Crime No. 896/ 2022 of Kalady Police Station, it was ascertained that the exact location of the crime occurred is within the territorial limits of Ayyampuzha Police Station, and not within the limits of Kalady Police Station. Hence the FIR and CD in this case were sent from Kalady Police Station to Ayyampuzha Police Station and the crime was reregistered as Crime No. 2/2023 of Ayyampuzha Police Station on 4.1.2023. The brief of the allegation in this case is that the applicant sole accused during the period between 1.2.2019 and 29.2.2020 had forced the victim, who is his first cousin, to perform oral sex in different basis and attempted to have sexual intercourse with her by allegedly threatening her to make public her nude videos said to be in his possession. B.A.No. 91 of 2023: 6. This bail application has arisen from Crime No. 895/2022 of Kalady Police Station, Ernakulam. The offences alleged are those punishable under Sec.354A(1)(i) I.P.C. and Secs. 7, 8, 9l, 9n and 10 of the POCSO Act. The period during which the alleged offences have BA 75 & 91 of 23 - : 8 :- occurred is from 1.10.2012 to 30.9.2013 at a time when the victim was said to be a minor. The FIR has been registered on 6.10.2022. 7. The brief of the prosecution case is that between 1.10.2012 and 30.9.2013, when the victim girl was a minor, the applicant sole accused who is her first cousin on several occasions had sexually assaulted her by kissing and hugging as well as by touching her private parts on the alleged threat that he was in possession of her nude videos and he would publicize the same. The specific case of the applicant is that the applicant has been working in Qatar, which is a gulf country, from 2016 onwards and that he had reached Qatar for the first time on 2.12.2016 and after that, he had returned to India for the first time on 12.2.2019 and left India on 19.4.2019. The second time he came to India was on 8.1.2020 and had returned on 6.2.2020. His third and last visit to India was on 20.12.2021 and had left India on 4.1.2022. 8. The petitioner has a specific case that his marriage is to be solemnized on 17.3.2023 and that it is only out of malicious considerations that the victim who is his father's sister's daughter (first cousin) has chosen to raise false allegations. Further that he would come down to India and co-operate with the Police BA 75 & 91 of 23 - : 9 :- investigation and the due process of the Court. That since his marriage is scheduled to be solemnized on 17.3.2023, he has to come down to India immediately, and but that in view of the pendency of his crimes, he will be arrested and that he may be granted anticipatory bail by this Court, subject to any strict conditions. 9. The learned Single Judge has passed reference order in these two cases on 1.2.2023 ordering the placing of these cases before the Division Bench to be heard along with the earlier referred cases, the details of which have already been stated herein above. It was later that the Division Bench of this Court has passed common order dated 1.3.2023 admitting these two cases and granting interim bail to the applicant in these two cases subject to strict conditions and in view of the detailed reasons given therein. In view of the abovesaid facts and circumstances it can be seen that the accused was abroad at the time of registration of these two FIRs on 6.10.2022. The applicant has clearly taken the stand that he would certainly come down to India and fully co-operate with the Police investigation and the due process of the court. After grant of the interim bail order it is reported that the applicant had in fact come to Kerala and has cooperated with the interrogation and has also secured bail in BA 75 & 91 of 23 - : 10 :- pursuance of the interim anticipatory bail order granted by this Court in these two cases. One of the conditions in the interim bail order is that the applicant shall not leave the country without the permission of this Court and that he shall surrender his passport before this Court. It is reported that the accused has also surrendered his passport before this Court. This Court has ordered on 1.2.2023 that he should not leave the country without permission of this Court and he shall surrender his passport before this Court as the bail applications were pending before this Court and as the jurisdictional court involved in these two separate crimes would be separate courts. 10. We are of the view that in view of the abovesaid factual aspects, this is a fit case in which discretion could be exercised under Sec. 438 of the Cr.P.C. for grant of bail. The accused was abroad long before the institution of crime. For the purpose of bail application we would note the delay involved in the registration of the crimes. The applicant has come down to India and has co-operated with the Police interrogation and has surrendered his passport, etc. We are convinced that in these cases, the custodial interrogation of the accused is not necessary. The Police has no such case. For these reasons, we are convinced that these cases would fulfill the BA 75 & 91 of 23 - : 11 :- parameters for grant of anticipatory bail under Sec. 438 of the Cr.P.C. 11. The applicant has made out a serious apprehension that as he has to come down to India for his marriage, the moment he lands at the airport, he will be arrested in view of the pendency of these crimes. 12. In the light of the above aspects, the interim bail orders granted to the applicant in these two crimes as per the common order dated 1.3.2023 rendered by this Court are made absolute. However, minor modifications may be required regarding condition No.5 of the bail order dated 1.3.2023 passed by this Court in these cases. 13. We are now told that in B.A.No. 75/2023, arose out of the original Crime No. 896/2022 of Kalady Police Station and the same has been re registered as Crime No. 2/2023 of Ayyampuzha Police Station, Ernakulam District and that the offence involved in this case is as per Sec. 376(2)(n) of the I.P.C. and the jurisdictional court concerned now is the Judicial First Class Magistrate's Court No.IV, Perumbavoor, Ernakulam District. 14. Further it is noted that in B.A.No. 91/2023 the FIR in Crime No. 895/2022 of Kalady Police Station, (Whether Ayyampuzha – Police Station involved). The offences alleged in B.A.No. 91/2023 BA 75 & 91 of 23 - : 12 :- are those as per Sec. 354A(1)(i), and Sec. 7, 8, 9l, 9n, and 10 of the POCSO Act and that since the offence as per POCOS Act, are involved the jurisdictional court concerned is the Special POCSO Act, Muvattupuzha, Ernakulam District. 15. In view of these aspects, we are of the view that there is no necessity to keep these bail applications, pending any longer. 16. Since these applications are being dispsoed of there is no necessity to hold that the applicant accused should secure permission from this Court if he wants to leave India, etc. Accordingly it is ordered that condition No.5 of the bail order dated 1.3.2023 passed by this Court to the effect that _the petitioner shall not leave the country without the permission of this Court and he shall surrender his passport before this Court_ , will stand modified and substituted as follows: “ _The applicant shall not leave the country without the permission of both the jurisdictional courts concerned in the aforesaid two crimes.”_ 17. Now the applicant's passport is surrendered before the Registry of this Court. It is ordered that the Registry of this Court will transmit the passport of the applicant along with a copy of this order to the Special POCSO Court, Muvattupuzha, which is the BA 75 & 91 of 23 - : 13 :- jurisdictional court in relation to Crime No. 895/2022 of Kalady Police Station (in B.A.No. 91/2023). In case the petitioner secures permission from both the aforesaid jurisdictional Courts to leave India, etc. then the passport of the applicant shall be returned to him by the afore Special Court concerned. In case the petitioner files application before the jurisdictional courts concerned for permission to leave India, the said courts will hear the counsel for the applicant and the learned Public Prosecutor and then the respective courts may pass orders independently and in accordance with law and in the light of the legal principles well settled in relation to matters for granting permission by the court concerned to an accused to go abroad, etc. No further orders and directions are called for. With these observations and directions, both the above bail applications will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- ## **C.S.SUDHA, JUDGE** sdk+ BA 75 & 91 of 23 - : 14 :- ## **APPENDIX OF BAIL APPL. 75/2023** ## **PETITIONER ANNEXURES** **RECIEPT TRUE COPY OF THE RECEIPT REGARDING THE SURRENDER OF THE PETITIONER'S PASSPORT ISSUED FROM THE OFFICE OF THE REGISTRAR (JUDICIAL), HIGH COURT OF KERALA, DATED 07-03-2023**