Ismayil (S/o AbooBakker) v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942** ## **Bail Appl..No.4851 OF 2020** **AGAINST THE ORDER/JUDGMENT IN CRMC 1404/2020 DATED 23-07-2020 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM** **CRIME NO.510/2020 OF CHENGAMANAD POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **ISMAYIL, S/O ABOOBAKKER, AGED 58 YEARS, RESIDING AT AASARIPARAMBIL HOUSE, ADUVASSERY, KUNNUKARA, ALUVA – 683 578** **BY ADV. SRI.SABU P.JOSEPH** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA – 682 031 2 STATION HOUSE OFFICER CHENGAMANAD POLICE STATION, CHENGAMANAD, PIN-683578.** **R1 BY SRI.AJITH MURALI, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 4851 of 2020 2 ## **P.V.KUNHIKRISHNAN, J. ================== B.A.No. 4851 of 2020 ================== Dated this the 17[th] day of August, 2020** ## **O R D E R** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. The petitioner is the accused in crime No. 510 of 2020 of Chengamanad Police Station, Ernakulam District. The above case is registered against the petitioner alleging offences punishable under Sections 7 r/w 8, 10 r/w 9(m) and section 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The offence under section 354 A IPC is also alleged. 3. The prosecution case is that, on 05.07.2020 at about 11.a.m, the victim aged 11 years went to the shop B.A.No. 4851 of 2020 3 of the petitioner, situated at South Aduvasserykara Kunnukara Village to purchase milk and curd. The allegation is that, the petitioner took the victim to a room inside the shop and offered her ice cream. It is also alleged that the petitioner touched the shoulder and hand of the victim. Hence, it is alleged that, the petitioner committed the above said offences. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that, it is a false case foisted against the petitioner. The counsel submitted that, the petitioner is conducting a bakery shop. Some amount is due to the petitioner from the father of the victim. According to the counsel the petitioner is a cardiac patient. He produced Annexure A1, Discharge summery issued from Lissy Hospital, Ernakulam. He submitted that after discharge from the hospital, his wife was sitting in the shop. Actually there is no incident happened as alleged by the prosecution. The counsel also B.A.No. 4851 of 2020 4 produced Annexure-A3 an affidavit of an adjacent shop owner to show that there is no such incident happened. The counsel submitted that Annexure-A4, is the photograph of the shop, in which the alleged incident is happened. The counsel submitted that, the bare look of the photographs, it is clear that the incident as alleged by the prosecution is improbable. The counsel also produce Annexure-A5, a face book post of a local leader, in which he only says that he is not aware about the correctness of the allegation. Annexure-A6 is a memorandum submitted by about 125 local residents to the Chief Minister saying that, this is a false case. The counsel also submitted that Annexure-A7 is the memorandum submitted by the Kerla Vayapari Vayavasayi Ekkopana Samithy saying that, this is a false case. Annexure A8 is a complaint filed by the wife of the petitioner. The counsel submitted that, even if the entire allegations are accepted no offence is made out. 6. The learned Public Prosecutor opposed the bail application. The learned Public Prosecutor submitted that, B.A.No. 4851 of 2020 5 the petitioner committed a serious offence and the victim is only aged at 11 years. 7. After hearing both sides, I think this bail application can be allowed on stringent conditions. The allegation against the petitioner is that, the petitioner touched the shoulder and hand of the victim girl. Whether the offence under Section 7 and offence under Section 9(m) of the POCSO Act is attracted in such situation, is a matter to be investigated by the Investigating Officer. I do not want make any observations about the merits of the case. As far as the offence under Section 12 of the POCSO Act is considered the maximum punishment that can be imposed is three years. The offence under Section 354A is a bailable offence. Moreover, the petitioner produce Annexure A1 Medical report to show that he underwent treatment in a hospital in connection with his heart ailment. I do not want make any observations about Annexure-A3 to A8 produced along with this bail application. These are matters to be investigated by the B.A.No. 4851 of 2020 6 Investigating Officer. But, considering the entire facts and circumstances of this case, this bail application can be allowed on stringent conditions. To attract an offence Under Section 7 of the POCSO Act, the accused with sexual intention should touch the vagina, pennis, breast of the child or make the child touched on those places. There is no such allegations in this case. Similarly Section 9(m) says that whoever commits sexual assault on a child below the age of 12 is liable as per Section 10 of the POCSO Act. Sexual assault is mentioned in Section 7 of the POCSO Act. There nothing to show at present to prove sexual assualt. Anyway these are matters to be investigated by the Investigating Officer. Considering the entire facts and circumstances of this case, I think this bail application can be allowed on stringent conditions. 8. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in _**Re: Contagion of COVID-19 Virus In Prisons**_ B.A.No. 4851 of 2020 7 _**case (Suo Motu Writ Petition(C) No.1 of 2020)**_ and a Full Bench of this Court in _**W.P(C)No.9400 of 2020**_ issued various salutary directions for minimizing the number of inmates inside prisons. 9. Moreover, it is a well accepted principle that, the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in _**Chidambaram P. v. Directorate of Enforcement (2019 (16) SCALE 870),**_ after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that, the accused has the opportunity of securing fair trial. 10. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: _1. The petitioner shall appear before the_ _Investigating Officer within ten days from today_ B.A.No. 4851 of 2020 8 ## _and shall undergo interrogation;_ _2. After interrogation, if the Investigating Officer proposes to arrest the petitioner, he shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned;_ _3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;_ _4. The petitioner shall not leave India without permission of the Court;_ _5. The petitioner shall not commit an offence similar to the offence of which he is accused, or_ B.A.No. 4851 of 2020 9 _suspected, of the commission of which he is suspected;_ _6. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic._ If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. ## **(Sd/-)** **P.V.KUNHIKRISHNAN, JUDGE** LU