Jailani@Lailani v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941** **Bail Appl..No. 3638 of 2019** **AGAINST THE ORDER/JUDGMENT IN CRMP 416/2019 of I ADDITIONAL DISTRICT COURT, ERNAKULAM DATED 14-05-2019** **CRIME NO. 304/2019 OF Pothanikadu Police Station , Ernakulam** ## **PETITIONER/ACCUSED:** **JAILANI@LAILANI AGED 44 YEARS S/O. MYTHEEN, INCHAKUDIYIL HOUSE, PALLARIMANGALAM P.O, ERNAKULAM DISTRICT.** **BY ADVS. SRI.SALIM V.S. SRI.M.M.ANSAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM - 682 031.** ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J. ----------------------------------------B.A. No. 3638 of 2019 ----------------------------------------Dated this the 30[th] day of May, 2019** ## **O R D E R** The petitioner is the sole accused in Crime No.304/2019 of Pothanikad Police Station which has been registered for offences punishable under Sections 354A, 376(1), 376(3) of IPC and Section 3(b) r/w 4, Section 7 r/w 8 of Protection of Children From Sexual Offences (POCSO) Act, 2012. 2. The prosecution case in brief is that the petitioner is a driver by profession who is neighbour of the minor victim girl's family and the girl's father employed in a Gulf country, that the minor victim girl, her elder sister, her cousin brother, her father and the petitioner's minor daughter were all travelling back from Munnar to Kothamangalam in a car driven by the petitioner/accused. At about 8 p.m. on 31.03.2019, the car had stopped near Kothamangalm Town as the girl's father wanted to purchase some ayurvedic medicines. The girl's father and girl's elder sister went to the pharmacy shop to purchase the medicines. B.A. No. 3638 / 2019 **==> picture [19 x 9] intentionally omitted <==** At that time, the petitioner's minor daughter and the minor victim girl aged 12 years were sitting at the back seat of the car and the girl's cousin brother was also sent away to the shop, at that time, when the petitioner's minor daughter was sleeping, the petitioner had then forcibly lowered the pant and the undergarment of the minor victim girl and had committed digital penetration and he had pressed her breast also and the petitioner had thus committed the abovesaid offences. It is pointed out by the petitioner that the abovesaid allegations have been falsely foisted on him on account of the difference of opinion between the girl's father and mother and that the alleged incident is said to have taken place on 31.03.2019 and even according to the First Information Statement, the girl's father had left to the Gulf country on 03.04.2019 and the minor victim girl, who is said to have made the complaint only as late as on 10.04.2019 which led to the registration of the crime on the same day and that the long and unexplained delay in that regard would seriously affect the credibility and believability of the prosecution allegation. B.A. No. 3638 / 2019 ..4.. 3. Even according to the First Information Statement, the petitioner was frequently being employed as a driver by the minor victim girl's father and that no such previous allegations whatsoever has been made by the minor victim girl's family members as against the petitioner, it is urged further, even according to the First Information Statement, the petitioner's own minor daughter, aged 12 years was also sitting at the back seat next to the minor victim girl and that the petitioner's daughter was sleeping etc. If the incidents of the abovesaid nature have taken place, certainly, the girl would have raised some cry and the petitioner's daughter also would have been alerted and no such case is alleged by the prosecution. That attendant circumstances would clearly and strongly probabilise the petitioner and that the abovesaid allegations lacks credibility and believability and has been made only for extraneous and ulterior motives. Further, it is pointed out that the petitioner has been under judicial custody since 11.04.2019 and that more than 50 days has been lapsed after he has been taken into custody. The investigation has been duly B.A. No. 3638 / 2019 **==> picture [18 x 9] intentionally omitted <==** completed and the final report has already been filed on 22.05.2019 that no serious allegation of penetrative sexual assault has been raised against the petitioner in the instant case and that the continued detention of the petitioner is not really called for and that this Court may grant regular bail to the petitioner subject to any stringent conditions to ensure the integrity of the outcome of the trial process. 4. Further, it is also pointed out by the learned counsel for the petitioner that the regular bail application of the petitioner has been dismissed by this Court concerned as per order dated 14.05.2019 and it has been annexed as Annexure-A1 with this application and that the finding made by the learned Sessions Judge in the final paragraph of the said order that the petitioner has committed an offence punishable under Section 376AB of IPC is factually wrong and as it is pointed out that the minor victim girl's date of birth is 07.07.2006. If that be so, she has completed the age of 12 years on 07.07.2018 and that Section 376AB provides for punishment only in cases where the offence is committed as B.A. No. 3638 / 2019 ..6.. against the girl below the age of 12 years as on the date of commission of the offence and so that Section has no bearing in this case. 5. The learned Prosecutor has opposed the grant of bail and submitted that even though the investigation has been duly completed and the final report has been filed on 22.05.2019, the allegations raised against the petitioner are serious and that since the petitioner is an immediate neighbour of the minor victim girl, it is quite likely that he would intimidate and influence the witnesses, including the minor victim girl. 6. At the outset, it has to be mentioned that the observations made by the learned Sessions Judge in the final paragraph of Annexure-A1 order that the accused has committed offences under Section 376AB of IPC is factually untenable, as the girl had already completed the age of 12 years on the day of commission of the offence. The learned Prosecutor has also confirmed that the date of birth of the minor victim girl is 07.07.2006. B.A. No. 3638 / 2019 **==> picture [18 x 9] intentionally omitted <==** 7. After hearing both sides and after evaluating facts and circumstances of this case, it is seen that the investigation has already been completed and the final report has already been filed on 22.05.2019, further, there are no serious allegations of penetrative sexual assault in this case, as the allegations are confined to digital penetration. Taking note of these factual aspects and some of the other attendant circumstances, pointed out hereinabove, this Court is of the view that the continued detention of the petitioner may not be necessary as he has already been under custody for the last more than 50 days. The apprehension raised by the prosecutor that as the petitioner is the immediate neighbour of the minor victim girl, he is likely to intimidate and influence the witnesses including the girl cannot be ruled out. The said apprehension could be alleviated by directing that the petitioner shall not reside anywhere within the territorial limits of the Police Station where the minor victim girl is residing until the conclusion of the investigation. Accordingly, it is ordered that the petitioner shall be released on bail on his executing bond for Rs.50,000/- (Rupees Fifty Thousand only) and on his furnishing two solvent sureties for the like sum, each to the satisfaction of the competent court below concerned. 8. However the grant of bail will be subject to the following B.A. No. 3638 / 2019 ..8.. ## conditions:- - _i. The applicant shall appear before the Investigating Officer on every 2[nd] and 4[th] Saturdays, at any time between 10 am and 1 pm, for a further period of 3 months._ - _ii. He shall not intimidate or attempt to influence the minor victim girl, witnesses; nor shall he tamper with the evidence._ - _iii. He shall appear before the investigating officer as and when required by that officer._ - _iv. He shall not commit any offence while on bail._ - _v. The petitioner shall not go anywhere near to the educational institution or residence of the minor victim girl._ - _vi. The petitioner shall not contact the minor victim girl or any other members of her family and nor shall he visit their residence. He shall not enter into or reside within the territorial limits of the Police Station where the minor victim girl and her family is residing until the conclusion of investigation, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyer/advocate concerned._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned shall stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law. With these observations and directions, the above Bail Application will stand disposed of. sd/- ## **ALEXANDER THOMAS, JUDGE** SKS