## `IN THE HIGH COURT OF KERALA AT ERNAKULAM`
## `PRESENT`
```
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
TUESDAY, THE 28[TH] DAY OF FEBRUARY 2023 / 9TH PHALGUNA,
```
## `1944`
## `BAIL APPL. NO. 922 OF 2023`
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[CRIME NO.68/2023 OF TOWN WEST POLICE STATION, THRISSUR]
```
## `PETITIONER/S:`
```
HARISANKAR R.C
AGED 18 YEARS
SREEMANGALAM HOUSE, PERUMBALOOR, P.O PERUMBALOOR,
NEYYATTINKARA, TRIVANDRUM, KERALA, PIN - 695124
```
```
BY ADV SARATH BABU KOTTAKKAL
```
## `RESPONDENT/S:`
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
```
```
BY ADV PUBLIC PROSECUTOR
```
## `OTHER PRESENT:`
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ADV C S HRITHWIK - SR PP
```
```
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
28.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
```
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## ORDER
The petitioner is the accused in crime No.68/2023 of Town West Police Station, Thrissur. The offences alleged against the petitioner are under Sections 363, 354(A)(B) of the Indian Penal Code and also under Section 7, read with Section 8 of the Protection of Children from Sexual Offences (POCSO) Act. Subsequently, the offence under Section 3(2)(Va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the SC/ST Act), has been incorporated as the defacto complainant belongs to Scheduled Caste community.
2. The allegation against the petitioner is as follows: The victim girl, a minor, got acquainted with the petitioner through Instagram. Based on the acquaintance, the victim went to a hotel in Thrissur, where she met the petitioner, his brother and one of his friends. When the brother of the petitioner and his friends were away, the petitioner allegedly hugged the defacto complainant and kissed her. The aforesaid incident occurred on 15.09.2022, and the crime in respect of the same was registered on 14.01.2023 on the basis of the information furnished by the defacto complainant. This application is submitted for anticipatory bail by the petitioner as he
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apprehends arrest in connection with the investigation of the case.
3. Notice of this Bail Application has been served through the Station House Officer concerned, to the victim on 13.02.2023, showing the next date of posting as 20.02.2023. Consequently, the matter was taken on 20.02.2023, and since there was no appearance for the victim, the matter was adjourned to today. Today when the matter is taken up, there is no appearance for the victim. A memo showing the service of notice to the victim has been made available before this Court by the learned Public Prosecutor, which shall form part of the records of this case.
4. The specific contention put forward by the learned counsel for the petitioner is that the petitioner and the victim were in a love affair. Later the victim started avoiding the petitioner, and on account of the same, the petitioner went into mental depression, and consequently he attempted to commit suicide by consuming Naphthalene balls. It is pointed out that due to the timely intervention of his relatives, he could be saved. He places reliance upon Annexure-1 Discharge Certificate to substantiate the aforesaid contentions. It is also contended that at a subsequent stage also, the petitioner attempted to commit suicide due to the depression developed on account of the failed relationship between him and the victim. The contention of the petitioner is that, as a precaution, the
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crime was registered in such circumstances by the defacto complainant, as she apprehended some proceedings against her in connection with the attempt by the petitioner to commit suicide.
5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. According to the learned Public Prosecutor, there are allegations that the petitioner hugged and kissed the defacto complainant with sexual intentions. Since the defacto complainant is a minor, the offences are attracted. It is also contended that now the offences under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, have also incorporated and therefore, anticipatory bail cannot be granted to the petitioner, as the said remedy is not contemplated for the offences under the said Act.
6. I have gone through the records and heard the contentions raised from both sides. It is true that, as far as the remedy of anticipatory bail in respect of the offences alleged under the SC/ST Act is concerned, the said remedy cannot be availed because of the specific bar contained in the Act. However, the challenge against the maintainability of the application for anticipatory bail is not sustainable in view of the decision rendered by this court in Renoj v. State of Kerala [ 2022 (6) KLT 352] . In the said decision, it was held by this court that, since the POCSO Act is
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a special enactment, whenever an offence under the provisions of the POCSO Act is alleged along with the provisions of the SC/ST Act, the accused shall be entitled to take recourse to the procedure contemplated under the POCSO Act, for bail. It was clearly observed that the provisions of the POCSO Act will prevail over all the other laws in the event of inconsistency. I am in perfect agreement with the observations made in the said decision. Hence, as this is a case in which major offences are under the POCSO Act, the challenge raised against the maintainability of this application is rejected.
7. When coming to the facts of the case, it can be seen that the main allegation raised against the petitioner pertains to the act of hugging and kissing the victim. The records available before this court indicate a relationship between the petitioner and the victim. The overall conduct of the petitioner, as revealed from the records placed before this court, clearly indicates that the petitioner had no intention to harass the victim. On the other hand, the petitioner was all along maintaining a good relationship with the victim and was intending to marry her. Annexures 1 and 2, medical records relied on by the petitioner to some extent, substantiate the petitioner's contention that he went into mental depression and attempted to commit suicide.
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8. The specific case of the petitioner is that the aforesaid suicide attempt was made by the petitioner on account of mental depression, which arose due to the failed relationship between the petitioner and the victim. When all these aspects are considered, under no circumstances can it be held that the petitioner had any intention to harass the victim.
9. Moreover, it is seen that the sexual assault alleged are not very serious in nature. The petitioner is aged 18 years, and the victim is 17 years. The relationship between the parties is admitted even as per the statements of the victim. In such circumstances, the possibility of an incident occurring based on a love affair between the parties cannot be ruled out, as contended by the learned counsel for the petitioner. Because the petitioner is very young and immature, I am of the view that incarceration of the petitioner at this stage would cause serious harm to his person, character and career. This is particularly when he has no criminal antecedents. While taking this view, the fact that the petitioner is a person who attempted to commit suicide on account of mental depression, due to failed relationship between the petitioner and the victim cannot be ignored. Therefore, incarceration of the petitioner at this stage can be counterproductive.
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10. In such circumstances, I am of the view that this is a case in which some orders protecting the personal liberty of the petitioner are to be passed while ensuring his cooperation with the investigation.
In such circumstances, this bail application is disposed of with the following directions:
- (1) The petitioner shall surrender before the Investigating Officer, within a period of two weeks from today, for subjecting himself to interrogation.
- (2) 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.
- (3) 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.
- (4) 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.
- (5) The petitioner shall also appear before the Investigating Officer as and when required.
- (6) The petitioner shall not commit any offence of similar nature while on bail.
- (7) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other
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person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.
- (8) The petitioner shall not leave the country 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
ncd
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## `APPENDIX OF BAIL APPL. 922/2023`
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PETITIONER ANNEXURES
Annexure1THE TRUE PHOTOCOPY OF THE DISCHARGE
CARD OF THE ACCUSED DATED 10/01/2023 OF
THEMEDICALCOLLEGEHOSPITAL,
THIRUVANANTHAPURAM
Annexure2THE TRUE PHOTOCOPY OF THE PRESCRIPTION
OF THE ACCUSED ISSUED FROM THE SRI
RAMAKRISHNA ASHRAM CHARITABLE HOSPITAL,
TRIVANDUM DATED 13/01/2023
Annexure A3THE TRUE PHOTOCOPY OF THE DISCHARGE
SUMMARY OF THE ACCUSED ISSUED FROM THE
SRI RAMAKRISHNA ASHRAM CHARITABLE
HOSPITAL, TRIVANDUM DATED 27/01/2023
```
