Mohammed Simsar v. State of Kerala – Bail Application No. 6883 of 2020 - High Court of Kerala (2020)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. Kunhikrishnan
Judgment Date: 2020-11-12
Court Decision / Holding: This Bail Application is allowed, with stringent conditions as detailed in the order. The court notes the need to balance the accused’s right to fair trial with public interest and COVID-19 considerations; it requires bond, sureties, regular appearance, restrictions within the jurisdiction, travel limitations, and compliance with social distancing norms.
Final Disposition: Bail granted with stringent conditions

Parties to the Case

Appellants / Petitioners

Mohammed Simsar

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri. T. B. Shaijimon

Counsels for Respondents

• Sri. Renjith T.R., PP

Case Synopsis & Summary

This is a bail application under Section 439 CrPC filed by Mohammed Simsar in Crime No. 854/2020 of Kasaragod Police Station, arising from alleged offences under the POCSO Act (Sections 3 r/w 4 and 9(1) r/w 10) and IPC (Sections 354A(1) and 376(3)), along with Section 373(3) IPC referenced in the proceedings. The prosecution alleges that on 1.9.2020, from the house of a relative of a 14-year-old survivor, the accused sexually assaulted the girl by kissing with sexual intent and rubbing her private parts; earlier in February 2020 similar acts including rape and penetrative sexual assault are alleged. The petitioner claims the relationship was consensual and that the allegations are a false foist; he is a student and was in custody since 8.9.2020. The State argues that consent is immaterial where a minor is involved. After hearing, the court, noting the petitioner’s age (as argued, around 20) and the victim’s age (14), and balancing the need for fair trial with public interest, grants bail with stringent conditions, while emphasizing social distancing directives due to COVID-19 and citing established bail jurisprudence. The order ultimately allows bail subject to conditions such as bond, appearance, restrictions on travel and residency, compliance with COVID-19 guidelines, and regular appearances before the Investigating Officer.

Provisions of Law Cited

Section 439 CrPCSection 439(1A) CrPCSection 3 r/w 4 and Section 9(1) r/w Section 10 of the POCSO ActSection 354A(1) IPCSection 376(3) IPCSection 373(3) IPC

Legal Doctrines & Maxims

Bail is the rule and jail is the exception
Consent of a minor is immaterial in offences involving a minor

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel contended that the accused is around 20 years old and the survivor is 14; the couple were in a relationship and the allegations of sexual assault are false; the parents are against the relationship; the petitioner is a college student and has been in custody since 8.9.2020, causing disruption to studies; he is willing to comply with stringent conditions.

Contentions of Respondents

The State opposed bail, submitting that the minor was involved in sexual assault; the consent of a minor is immaterial; there are serious allegations and the offences under POCSO and IPC are invoked; the case requires stringent control over the accused.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Re: Contagion of COVID-19 Virus In Prisons case	Suo Motu Writ Petition(C) No.1 of 2020	Mentioned Only	Cited to reflect Supreme Court directions on minimizing prison population during the COVID-19 pandemic; not a direct legal rule for bail here.
W.P(C)No.9400 of 2020	W.P.(C) No. 9400 of 2020	Mentioned Only	Cited as context for salutary directions by this Court’s Full Bench; used as situational support for prison-related COVID-19 safeguards.
Chidambaram P v Directorate of Enforcement	2019 (16) SCALE 870	Positive	Cited to uphold the principle that bail is the rule and jail is the exception; this principle underpins the grant of bail in the present case.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942** ## **Bail Appl..No.6883 OF 2020** **CRIME NO.854/2020 OF Kasaragod Police Station , Kasargod** ## **PETITIONER:** **MOHAMMED SIMSAR AGED 14 YEARS S/O ABDUL SATHAR, R/AT KANATHUMKARA, VIDYANAGAR, KASARGOD, PIN-671121** ## **BY ADV. SRI.T.B.SHAJIMON** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN-682031** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 6883 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No. 6883 of 2020 ------------------------------Dated this the 12[th] day of November, 2020 ## **O R D E R** This Bail Application filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the accused in Crime No.854 of 2020 of Kasargod Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 3 r/w. Section 4 and 9 (l) r/w. Section 10 of the Protection of Children from Sexual Offences Act (for short 'POCSO Act'). The offence under Section 354 A(i) and 376(3) IPC are also alleged. 3. The prosecution case is that on 1.9.2020 during night, from the house of a relative of the survivor aged 14 years old girl, the accused has committed sexual assault on the girl by kissing her with sexual intend and by rubbing her private parts. B.A.No. 6883 of 2020 3 It is alleged that on a day in February, 2020, the accused has done similar acts from the house of the girl and also committed rape as well as penetrative sexual assault on her. The petitioner was arrested on 8.9.2020. 4. Heard the counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that the petitioner is aged 20 and the victim is aged 14. The counsel submitted that they were in love. The allegation that there was sexual assault is false. The counsel submitted that the parents of the victim girl is against the affair. They attacked the petitioner. Thereafter, this false case is foisted against the petitioner. The counsel submitted that the petitioner is studying for degree course in a college. For the last 60 days the petitioner is in custody. He missed classes. Therefore, the counsel submitted that the petitioner is ready to abide any conditions, if this Court grant him bail. 6. The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the petitioner committed B.A.No. 6883 of 2020 4 sexual assault on a minor girl. The offence under Section 376(3) IPC is also alleged. The Public Prosecutor submitted that the consent in such situation is immaterial. 7. Since Section 373(3) IPC is alleged in this case, a notice was issued to the victim in accordance to Section 439 (1A) Cr.P.C. There is no appearance for the victim. 8. After hearing both sides and considering the fact that the petitioner is in custody from 8.9.2020, I think this bail application can be allowed on stringent conditions. The petitioner is only aged 20 years and the victim is aged 14 years. As stated by the Public Prosecutor, the consent in these type of cases is immaterial because the victim is a minor. But it is a fact that the victim in her statement itself stated that she invited the petitioner to her house. Again I have to say that, these are immaterial because she is a minor. 9. Considering the entire facts and circumstances of the case and also considering the fact that the petitioner is a student studying in a college and he is in custody from 8.9.2020, I think this bail application can be allowed on B.A.No. 6883 of 2020 5 stringent conditions. 10. 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 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. 11. 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. 12. 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 B.A.No. 6883 of 2020 6 directions: 1. Petitioner shall be released on bail on - executing a bond for Rs.50,000/ (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. 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. 3. Petitioner shall not leave India without permission of the jurisdictional Court. 4. Petitioner shall not commit an offence similar to the offence of which he is accused, B.A.No. 6883 of 2020 7 or suspected, of the commission of which he is suspected. 5. 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. 6. The petitioner shall not enter the jurisdictional limit of Kasaragod Police Station, for a period of one month from today. 7. The petitioner shall appear before the Investigating Officer on all Mondays at 9 a.m for a period of three months from today. For the purpose of appearance before the Investigating Officer, the petitioner can enter the jurisdictional limit of Kasaragod Police Station. 8. If any of the above conditions are violated by the petitioner, the jurisdictional B.A.No. 6883 of 2020 8 Court can cancel the bail in accordance to law, even though the bail is granted by this Court. Sd/- ## **P.V.KUNHIKRISHNAN, JUDGE** cms

Mohammed Simsar v. State of Kerala – Bail Application No. 6883 of 2020