Jineesh @ Lalan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** **CRL.MC.NO.7380 OF 2019(B)** **SC 247/2019 OF SPECIAL COURT UNDER POCSO ACT, KOTTAYAM CRIME NO.1889/2018 OF VAIKOM POLICE STATION, KOTTAYAM** ## **PETITIONER/ACCUSED:** **JINEESH @ LALAN, AGED 35 YEARS, S/O. GOPALAN, KONALI HOUSE, CHELAPARAMBU, VAIKOM P.O., KOTTAYAM, PIN-686 142.** **BY ADVS.SRI.M.REVIKRISHNAN,SRI.AJEESH K.SASI, SRI.P.M.RAFIQ,SRI.THOMAS J.ANAKKALLUNKAL, SRI.V.C.SARATH,SRI.VIPIN NARAYAN, SMT.POOJA PANKAJ,SRUTHY N. BHAT** ## **RESPONDENT/PETITIONER/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05.11.2019, ALONG WITH B.A.NO.7281/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941** **BAIL APPL.NO.7281 OF 2019** **CRIME NO.801/2019 OF THALAYOLAPARAMBU POLICE STATION, KOTTAYAM** ## **APPLICANT/ACCUSED:** **JINEESH @ LALAN, AGED 35 YEARS, S/O. GOPALAN, KONALI HOUSE, CHELAPARAMBU, VAIKOM P O, KOTTAYAM-686142.** **BY ADVS.SRI.M.REVIKRISHNAN,SRI.AJEESH K.SASI, SRI.P.M.RAFIQ,SRI.THOMAS J.ANAKKALLUNKAL, SRI.V.C.SARATH,SRI.VIPIN NARAYAN, SMT.POOJA PANKAJ,SRUTHY N. BHAT** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.11.2019, ALONG WITH CRL.M.C.NO.7380/2019(B), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -------------------------------------Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 -------------------------------------Dated this the 5[th] day of November, 2019 ## O R D E R As these matters are interlinked and as it pertains to the same petitioner, these cases are disposed of on the basis of this common order. ## Crl.M.C. No. 7380 of 2019 The petitioner herein was earlier arrayed as the sole accused in Crime No.1889/2018 of Vaikom Police Station, which has been registered for offences punishable under Secs.376(2)(n) & 450 of the IPC and Secs.3(a) r/w 4, 5(l) r/w 6 of the POCSO Act, on the basis of the FIS given by the minor victim girl aged 16 years. The allegation in that crime was to the effect that the petitioner aged 35 years who is living in the immediate neighbourhood of the minor victim girl then aged 16 years had forceful sexual intercourse with her on quite a few occasions, and that he had assured her that he would marry her etc. Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 ..4. The petitioner was arrested in that case and remanded and thereafter he was granted regular bail by the Sessions Court concerned as per order dated 30.10.2018 on Crl.M.P. No. 2259/2018 filed by the petitioner in the said crime, and a copy of the said order granting regular bail to the petitioner has been produced as Anx.A in the Crl.M.C. One of the conditions in the grant of bail to the petitioner is that the petitioner shall not influence or intimidate the witnesses. It appears that the police after investigation, has filed the final report/charge sheet in the said case, and now the matter is pending as Sessions Case S.C. No. 247/2019 on the file of the Court of the Addl.Sessions Judge-I, Kottayam. 2. Further it appears that after the incident, the minor victim girl was accommodated in a care home institution and she was going to school from the said care home institution. That, later on a day in November/December 2018, while the minor victim girl was travelling in a bus, the petitioner was also there in the bus and he came near her and threatened her not to give any evidence against him before the Court. The main allegations raised in the instant case is that, later on 11.7.2019 at about 8 am the minor victim girl was travelling in a bus to attend to the school, and the petitioner was also Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 **==> picture [15 x 9] intentionally omitted <==** found travelling in the same bus, that he had again threatened and intimidated her by saying that she should not give any evidence against him in the said case. The girl became frightened and after reaching the school had immediately reported the said incident to the Principal of the School who also found the girl in a terrified situation, and had made the girl take rest in the medical room of the school. The Principal had immediately alerted the girl's father about the said incident and the girl's father informed that he would report the matter to the police. It appears that the girl had also reported the said incident to the care home institution where she is residing on the same day. It so happened that the father of the girl had actually submitted the FIS regarding the said incident only on 18.7.2019 which is after 8 days after the incident which took place on 11.7.2019. 3. In that regard, Crime No. 801/2019 of Thalayolaparambu Police Station has been registered in which the petitioner has been arrayed as the sole accused for the offences as per Secs.354D & 506(i) of the IPC and Secs.11(iv) & 12 of the POCSO Act. Thereafter the Investigating Officer had filed an application before the Sessions Court concerned for cancellation of the bail granted to the petitioner in the rape case (Crime No.1889/2018 of Vaikom Police Station) on Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 ..6. the ground that the petitioner has intimidated and threatened the minor victim girl who is the crucial witness in the case. The Sessions Court as per the impugned order dated 1.10.2019 on Crl.M.P. No. 2175/2019 in S.C. No. 247/2019, after hearing both sides has found that the conduct of the petitioner has to be viewed very seriously and thus cancelled the bail granted to the petitioner in the abovesaid rape case. A copy of the said bail cancellation order rendered on 1.10.2019 on Crl.M.P. No. 2175/2019 in S.C. No. 247/2019 has been produced as Anx.D in the above Crl.M.C. It is this order at Anx.D that is under challenge in this Crl.M.C. 4. The counsel for the petitioner would strongly urge that the registration of the subsequent crime is delayed by more than 8 days after the date of incident and this itself casts serious doubts about the very believability and credibility of the prosecution case, and that the very case of the prosecution in the rape case is that, the petitioner had a love affair with the minor victim girl and the incidents of sexual intercourse are taken place, etc, and that the said affair was always resisted by the girl's father and the present complaint regarding the second crime has been made falsely at the instance of the girl's father. Further that, the allegations in the second crime are not sufficient to Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 ..7. cancel the precious right of accused who has been granted bail in the first case. 5. The learned Prosecutor has submitted that the abovesaid contentions are not correct, and that the delay in registration of the second crime is mainly on account of the conduct of the father and and that by itself will not in any manner affect the credibility and believability of the allegations of the minor victim girl inasmuch as the minor victim girl had immediately reported the incident on the same day itself at about 9 am to the Principal of the school and later when she had reached the care home institution, she had also reported the incident to the authorities of the care home institution. That, the Investigating Officer in the latter crime has taken the statements of the school Principal as well as the Director of the care home institution and counsellor there as well as that of the minor victim girl. The statements of all these persons would reveal that the minor victim girl had immediately reported the incident of intimidation and threat made by the petitioner in the bus on 11.7.2019 in the morning, and the Principal has stated that the girl was found in a highly terrified mood and there was no other way but to make the girl rest in the medical room for the whole day and that the Principal had Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 **==> picture [17 x 9] intentionally omitted <==** immediately alerted the father of the girl who had then said that he would report the matter to the police. Further that, the Director of the care home institution has also stated that the minor victim girl had also intimated them about the said incident immediately when she had reached the care home institution after the school, on the same day. The counsellor of the care home institution has also given such a similar statement about the minor victim girl immediately reporting the said incident to them, on the same day. The minor victim girl had also given statement to the police reiterating the abovesaid aspects. Thus it appears that, delay in reporting the subsequent crime was mainly on account of the conduct of the father, and the said delay does not seriously improbabilises the veracity of the victim's complaint. 6. Whereas the specific case of the petitioner is that, the father has made false allegations in this case. If as a matter of fact, the father of the minor victim girl wanted to victimize the petitioner at any cost, then he would have certainly reported to the police about the latter crime immediately on the same day or the next day thereafter. It appears that the father of the minor victim girl is a coolie worker who belongs to the economically lower strata of the society, and the fact that he has not reported the latter crime cannot be used as a relevant circumstance to Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 ..9. disbelieve the version of the minor victim girl atleast for the purpose of cancellation of bail in the rape case. The delay in registration of the latter crime may be relevant as regards the latter crime. Even otherwise from the allegations of the latter crime, it appears that the offences alleged as per the IPC in that crime are both bailable offences, and there is no allegation that the accused had done the threat of intimidation with any sexual intent, but only with the main intention to terrify the girl so that she does not give evidence against him in the rape case. Therefore, the petitioner may be right in contending that no sexual intent is made out in the incidents in the latter crime, and therefore the offences under the POSCO Act have not been properly made out, etc. That may be a good reason for the grant of bail in the latter crime. But the mere fact that both the offences as per the IPC in the latter crime are bailable offence will not take away the gravity and seriousness of the incidents in relation of the issues for cancellation of bail in the former crime which is a rape case. These objective facts and attendant circumstances would clearly throw light that the girl has immediately reported the incident to the school authorities and later to the care home institution, and therefore the veracity of the girl's allegations need not be doubted by the Courts atleast for the purpose of considering issues for bail cancellation in the Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 ..10. first crime (rape case), irrespective as to its impact on the latter crime for issuance of grant of bail, etc. The minor victim girl in this case is a rape victim and she has been threatened and intimidated by the accused in that case so that she is terrified not to give any evidence against him before the trial court. That cannot be viewed by the courts lightly as a trivial matter and for to do so, would be highly unfair and unjust to the victim. 7. The counsel for the petitioner has made submissions on the basis of the decisions of the Apex Court in the decisions as in _**CBI, Hyderabad v. Subramani Gopalakrishnan and Another [(2011) 5 SCC 296]**_ , wherein it has been held that cancellation of bail should not be done lightly and should be done only for grave reasons. That certainly is a proposition of law about which nobody can quarrel. But the heart of controversy regarding the cancellation of bail in the rape case is that, there are attendant facts and circumstances which would throw light that the petitioner has intimidated and threatened the girl so that she has been dissuaded from giving evidence against him and that is a relevant ground for cancellation of bail in the rape case. 8. That is a matter which should be very seriously viewed by this Court. Moreover this Court is only exercising supervisory Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 ..11. jurisdiction under Sec.482 of the Cr.P.C. The Special Sessions Court concerned has already found the matter to be very serious and grave to warrant the cancellation of bail granted to the petitioner in the rape case as per the impugned Anx.D order. This Court does not find any perversity, unreasonableness or illegality committed by the court below concerned in the issuance of the bail cancellation order as per Anx.D. In these circumstances, this Court is constrained to take the view that no interdiction is called for as regards the bail cancellation order to the extent it directs the cancellation of bail granted in the rape case. 9. While entertaining this Crl.M.C. this Court had granted interim stay of bail cancellation order in order to ensure that the subject matter of lis is protected. Now in view of the abovesaid aspects, since the matter does not require interdiction, it is ordered that the interim stay order granted by this Court in Crl.M.C. No. 7380/2019 will stand vacated. Accordingly, the petition is bereft of any merit, and the above pleas in this Criminal Miscellaneous Case will stand rejected. With these observations and directions, the above Criminal Miscellaneous Case will stand dismissed. Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 ..12. ## B.A. No. 7281 of 2019 10. The petitioner seeks anticipatory bail in relation to Crime No.801/2019 of Thalayolaparambu Police Station, which has been registered for offences punishable under Secs.354D & 506 of the IPC and Sec.11(iv) of the Prevention of Children from Sexual offence (POCSO) Act, 2012. The present case is the latter crime which is referred to in the aforementioned Criminal Miscellaneous Case. 11. The petitioner had threatened and intimidated the minor victim girl while she was travelling in a bus so that she was dissuaded from giving evidence against the petitioner in the first crime (rape case). Therefore there is substantial force in the contentions raised on behalf of the petitioner that, the prosecution is not able to sustain that the petitioner has done the abovesaid acts with any sexual intent as envisaged in Sec.11 of the POCSO Act, 2012, and therefore prima facie this Court is of the view that the offences under Secs.11 & 12 of the POCSO Act may not be strongly made out in the facts of the case. Both the IPC offences alleged in this case are bailable offences. Hence this Court is inclined to grant anticipatory bail to the petitioner in this case which is the latter crime. 12. Accordingly it is ordered in the interest of justice that, in Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 ..13. the event of the petitioner being arrested by police in connection with the abovesaid crime, he shall be released on bail on his executing bond for Rs.40,000/- and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the Investigating Officer concerned. Further it is also ordered that the grant of bail will be subject to following conditions:- - _i. The petitioner shall not involve in any criminal offences of similar nature._ - _ii. The petitioner shall fully co-operate with the investigation._ - _iii. The petitioner shall report before the Investigating Officer as and when required in that connection._ - _iv. The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application will stand disposed of. **==> picture [29 x 15] intentionally omitted <==** ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 7380 of 2019 & B.A. No. 7281 of 2019 ..14. ## **APPENDIX OF CRL.M.C.NO.7380/2019** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE ORDER DATED 30.10.2018 IN CRL.M.P.NO.2259 OF 2018 PASSED BY THE COURT OF ADDITIONAL SESSIONS JUDGE-I, KOTTAYAM. ANNEXURE B TRUE COPY OF THE FINAL REPORT IN CRIME NO.1889/2018 OF VAIKOM POLICE STATION, KOTTAYAM DISTRICT. ANNEXURE C TRUE COPY OF THE F.I.R ALONG WITH THE FIRST INFORMATION STATEMENT IN CRIME NO.801/2019 OF THALAYOLAPARAMBU POLICE STATION. ANNEXURE D TRUE COPY OF THE ORDER IN CRL.M.P.NO.2175 OF 2019 IN S.C.NO.247 OF 2019 PASSED BY THE COURT OF THE ADDITIONAL SESSIONS JUDGE-I, KOTTAYAM DATED 1.10.2019.**