Hamsa Usthad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** **Bail Appl..No.9244 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 2151/2019 DATED 09-12-2019 OF SESSIONS COURT, THRISSUR** **CRIME NO.434/2019 OF MANNUTHY POLICE STATION, THRISSUR** ## **PETITIONER/ACCUSED:** **HAMSA USTHAD AGED 56 YEARS, S/O ABOOBACKER, KARAPPAM HOUSE, KARUKATHIRUTHY.P.O, VALAVU DESOM, EZHUVATHURUTHY VILLAGE, MALAPPURAM DISTRICT, PIN-679584.** **BY ADVS. SRI.JOSEPH GEORGE SRI.BIJO THOMAS GEORGE SMT.NICEY A. MENON SRI.P.A.REJIMON** ## **RESPONDENT/DE FACTO COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI. T.R.RENJITH PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.9244 OF 2019** **2** # **ALEXANDER THOMAS, J.** # **=========================== B.A. No.9244 of 2019** **===========================** Dated this the 20[th] day of December, 2019 ## **ORDER** The petitioner herein has been arrayed as the sole accused in the instant Crime No.434/2019 of Mannuthy Police Station, Thrissur, which has been initially registered for offence punishable under Sec.377 of the Indian Penal Code. The crime has been registered on the basis of the First Information Statement given by the de facto complainant on 20.06.2019 at about 3.15 p.m. (crime registered on the same day at 3.55 p.m.), in respect of the alleged incidents which happened for the period from 01.01.2005 to 31.07.2017. The police after investigation has later added the offence as per Sec.92(d) of the Rights of Persons with Disabilities Act, 2016, as the de facto complainant/victim in this case is a physically disabled person. 2. The brief of the prosecution case is that when the de facto complainant was a young boy at the age of 8 years, he was studying in **Bail Appl..No.9244 OF 2019** **3** the Madrassa, in which the petitioner/accused was the Ustad and while so, for the period from 2005 to 2008, the petitioner used to often come near him and catch his genital organ and used to kiss him. That later, the petitioner/accused had gone away from the said Madrassa and he had come back. That while so, for the period in May, 2017 and July, 2017, the petitioner used to embrace the de facto complainant and kissed him and also used to insert his hands to pants of the victim and then catch his genital organ and used to rub the genital organ of the petitioner with the genital organ of the victim and this has been done by him on quite a few occasions and that this has caused great mental disturbances to the de facto complainant. Further that the date of birth of the de facto complainant/victim in this case is 09.05.1998. The petitioner has been arrested in this case on 16.11.2019 and after his remand, has been under detention since then. 3. Sri.Joseph George, learned counsel appearing for the petitioner would point out that the initial incidents are said to have happened in the year 2005 to 2008 and the FIS has been lodged only as late as on 20.06.2019 and there is a delay of 14 long years in the lodging of the case in that regard. Further that, even the last incident **Bail Appl..No.9244 OF 2019** **4** is said to be in May/July, 2017 and the delay in that regard in reporting the crime is above two years. That the prosecution has not given any explanation whatsoever, for the long delay, which would and that such long and unexplained delay in the lodging of the FIR would fatally vitiate the impugned criminal proceedings, as it affects the very believability and credibility of the prosecution story. Further, the learned counsel for the petitioner would point out that the alleged acts said to have been committed by the petitioner during the period from 2005 to 2008 are that the petitioner used to catch the genital organ of the boy and the petitioner used to kiss him on his face. Further that, the allegations pertaining to May/July, 2017 are to the effect that the petitioner used to embrace him, kiss him on his face and that he used to rub his genital organ with the genital organ of the victim, etc. In that regard, the petitioner would point out that none of the abovesaid alleged acts would even remotely satisfy the minimal ingredients of the offence as per Sec.377 of the IPC which deals with carnal intercourse against the order or nature. It is well settled by the decisions of this Court as in _**State of Kerala v. Kundumkara Govindan**_ [1968 (KLJ) 485] that the offence as per Sec.377 of the IPC may be satisfied **Bail Appl..No.9244 OF 2019** **5** in cases, where there are allegations of penetrative anal intercourse or that where the male assailant has placed his genital organ between the thighs of the victim or that there is some due courses of enveloping of the visiting organ by the visited organ, like placing the male organ between the cleavage of the buttocks, etc. or acts of oral sex like fellatio, etc. Further that, the abovesaid decision of this Court in _**State of Kerala v. Kundumkara Govindan**_ [1968 (KLJ) 485] has been approved and affirmed by the Constitution Bench of this Apex Court in the celebrated case in _**Navtejsingh Johar & others v. Union of India**_ [2018 (10) SCC 1]. 4. Further it is urged by the petitioner's counsel that as the petitioner has already suffered detention in this case for the last 34 days and the investigation has substantially progressed, no worthwhile purpose would be served by prolonging the incarceration of the petitioner and that this Court may order to release him on regular bail, subject to appropriate conditions, as this Court may deem fit. 5. The learned Public Prosecutor has opposed the plea for regular bail and has pointed out that there is every possibility of the **Bail Appl..No.9244 OF 2019** **6** petitioner intimidating and influencing the witnesses, more particularly, the de facto complainant, who is a disabled man, if the petitioner is let out on bail. 6. After hearing both sides and after careful evaluation of the facts and circumstances of this case and more particularly, after taking note of some of the abovesaid submissions made on behalf of the petitioner regarding the ingredients of the offence as per Sec.377 of the IPC as well as the crucial fact that the petitioner has already suffered detention for the last 34 days etc., this Court is inclined to take the view that the further incarceration of the petitioner could be avoided, so that he would be released on regular bail, subject to stringent conditions. 7. However, taking note of the abovesaid apprehension raised by the prosecution, it is ordered as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the de facto complainant is residing, until the conclusion of the trial process, subject to certain exceptions, which would be dealt with hereinafter. It is pointed out by the petitioner's counsel that the petitioner is now residing at Malappuram district, **Bail Appl..No.9244 OF 2019** **7** whereas the de facto complainant is residing in Thrissur district. 8. Accordingly, in the interest of justice, it is ordered that the petitioner shall be released on bail on his executing bond for Rs.40,000/- (Rupees Forty Thousand only) and on 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: - _(i). The petitioner will report before the Investigating Officer concerned at any time between 9:00 a.m. and 2 p.m. on every 2[nd] and 4[th] Saturdays, for the next three 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 vicinity of the residence, educational institution or work place of the de facto complainant._ - _(v). The petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the de facto complainant is residing or studying, etc. 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_ **Bail Appl..No.9244 OF 2019** **8** _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._ 9. The Investigating Officer may depute a police constable, at least once in a month for the next 3 to 4 months to the residence of the de facto complainant, to ascertain from him whether he has been subjected to any threat or intimidation by the petitioner or his men. If anything adverse against the petitioner, is brought to the notice of the Investigating Officer concerned, then the said officer shall immediately file the appropriate report, along with the requisite application before the competent court below concerned seeking cancellation of bail granted to the petitioner hereby and in that contingency, the said court will consider and pass orders on the said plea, after hearing both sides and in accordance with law. 10. 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. **Bail Appl..No.9244 OF 2019** **9** With these observations and directions, the above Bail Application will stand disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd