Dr. CKP Kunhabdhulla v. State of Kerala and Chandera Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946 ``` ``` BAIL APPL. NO. 5746 OF 2024 ``` ``` CRIME NO.502/2024 OF CHANDERA POLICE STATION, KASARGOD PETITIONER/ACCUSED: ``` ``` DR. CKP KUNHABDHULLA, AGED 61 YEARS S/O A P MOHAMMED HAJI,ZAREENA MANZIL, THANKAYAM,TRIKARIPOOR PO,KASARGOD, PIN - 671121 BY ADVS. S.RAJEEV A.ARUNKUMAR V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R. K.S.KIRAN KRISHNAN NOURIN S. FATHIMA ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,(CRIME NO 502/2024 OF CHANDERA POLICE STATION, KASARGOD DISTRICT), PIN - 682031`** - **`2 STATION HOUSE OFFICER, CHANDERA POLICE STATION,(CRIME NO. 502/2024 OF CHANDERA POLICE STATION, KASARGOD DISTRICT), PIN - 671310`** ## **`OTHER PRESENT:`** ## **`PP SMT NIMA JACOB`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.5746 of 2024 _-:2:-_ Dated this the 22[nd] day of July, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the accused in Crime No.502/2024 of the Chandera Police Station, Kasargod, registered against him for allegedly committing the offences punishable under Sections 354A (1)(i) of the Indian Penal Code, 1860 (IPC) and Section 8 r/w Section 7 of the Protection Of Children from Sexual Offences Act (POCSO Act) . 3. The gist of the prosecution case is that: on 23.02.2024, the victim, a 13 year old girl, went to the accused, who is a doctor by profession, had touched the breasts of the victim and outraged her modesty. Thus, the accused has committed the above offences. 4. Heard; Sri. S.Rajeev, the learned counsel B.A.No.5746 of 2024 _-:3:-_ appearing for the petitioner and Smt. Nima Jacob, the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The present crime has been registered on a total misconception of fact. The petitioner is apprehensive that the crime has been registered at the instigation of some rival and out of animosity towards the petitioner. The petitioner is a Doctor by profession, who is aged 61 years, and has retired from Government Service. The petitioner consults nearly 50 to 100 patients everyday and has more than four working staff in his clinic. It is in this background that the victim has alleged that the petitioner has outraged her modesty by touching her breasts. In fact, the victim along with her mother had approached the petitioner complaining of fever. Even though the alleged incident occurred on 23.02.2024, ## B.A.No.5746 of 2024 _-:4:-_ the FIR was registered only on 5.7.2024, which by itself proves the falsity and frivolity in the crime. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the petitioner’s involvement in the crime. It is only because the victim’s father was employed abroad and he could not come down immediately, there was a delay in lodging the FIR. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation is that, on 23.02.2024, when the victim went to the petitioner for medical treatment for fever, the petitioner during the examination of the victim had touched her breasts and B.A.No.5746 of 2024 _-:5:-_ outraged her modesty. On an evaluation of the materials placed on record, it can be seen that the petitioner is aged 61 years and is a retried Assistant Surgeon from Government Service. It is also seen that the petitioner and the victim are distant relatives. The fact that the alleged incident occurred on 23.02.2024 and the crime was registered only on 5.7.2024 proves some frivolity in the prosecution case. Nonetheless, that is a matter to be investigated and ultimately decided at the time of trial. However, I am of the firm view that the petitioner's custodial interrogation is not necessary for the proper and full investigation of the crime. 8. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that the petitioner is a Doctor by profession and the victim had gone to the petitioner for medical B.A.No.5746 of 2024 _-:6:-_ treatment, and it was was during the course of his examination, that the victim has alleged that the petitioner improperly touched her breasts, I am of the firm view that the petitioner has made out valid grounds to invoke the discretionary jurisdiction of this Court. I also find that the petitioners’ custodial interrogation is not necessary. Hence, I hold that the petitioner is entitled to an order of pre-arrest bail; subject to the condition that he co-operates with the Investigating Officer. In the result, the application is allowed subject to the following conditions: - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; B.A.No.5746 of 2024 _-:7:-_ - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioner shall not directly or indirectly make any inducement or threat to the victim or her witnesses or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period; - (vi)The petitioner shall not get involved in any other offence while on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders B.A.No.5746 of 2024 _-:8:-_ on the same, in accordance with law. - (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. SD/- ## **C.S.DIAS,JUDGE** rmm/22/7/2024