Moosa Kunnugothi v. Administrator, UT of Lakshadweep & Investigating Officer, CBI

**B.A.Nos.4521 & 4577 OF 2021 1** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** **BAIL APPL. NO. 4521 OF 2021** **CC 6/2016 OF SESSIONS COURT, KAVARATTI.U.T. OF LAKSHADWEEP, CIRME NO.9/2016 OF THE MINICOY POLICE STATION** ## **PETITIONER/ACCUSED A1:** MOOSA KUNNUGOTHI, AGED 47 YEARS, S/O.YOUSUF, KUNNUGOTHI HOUSE, KUDHEHI VILLAGE, MINICOY ISLAND, UT OF LAKSHADWEEP. BY ADVS. SAIBY JOSE KIDANGOOR P.M.MOHAMMED SALIH BENNY ANTONY PAREL S.SIBHA PARVATHY VIJAYAN ## **RESPONDENTS/STATE & COMPLAINANT:** 1 THE ADMINISTRATOR, U T OF LAKSHADWEEP, REP. BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM. 2 INVESTIGATING OFFICER, CBI, SCB, TRIVANDRUM, KERALA. BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA **B.A.Nos.4521 & 4577 OF 2021 2** SRI.S MANU, SCGC THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.08.2021, ALONG WITH Bail Appl..4577/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A.Nos.4521 & 4577 OF 2021 3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943 BAIL APPL. NO. 4577 OF 2021** **CC 1/2017 OF SESSIONS COURT, KAVARATHY** **CRIME NO.1/2016 OF THE MINICOY POLICE STATION** **PETITIONER/ACCUSED A1:** MOOSA KUNNUGOTHI, AGED 47 YEARS, S/O. YOOSUF, KUNNUGOTHI HOUSE, KUDHEHI VILLAGE, MINICOY ISLAND, UT OF LAKSHADWEEP. BY ADVS. SAIBY JOSE KIDANGOOR P.M.MOHAMMED SALIH BENNY ANTONY PAREL S.SIBHA PARVATHY VIJAYAN ## **RESPONDENTS/STATE & COMPLAINANT:** 1 THE ADMINISTRATOR, UT OF LAKSHADWEEP, REPRESENTED BY ITS STANDING COUNSEL HIGH COURT OF KERALA, ERNAKULAM. 2 INVESTIGATING OFFICER, CBI, SCB, TRIVANDRUM, KERALA. BY ADVS. SHRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP SHRI.P.VIJAYAKUMAR, ASG OF INDIA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.08.2021, ALONG WITH Bail Appl..4521/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A.Nos.4521 & 4577 OF 2021** **4** ## **ORDER** The petitioner herein is the 1st accused in C.C.Nos.1 of 2017 and 6 of 2016 pending on the files of the Special Court, Kavaratti, Union Territory of Lakshadweep. He faces indictment for having committed offences punishable under Sections 4, 6, 8, 10, 12 and 21 of the Protection of Children from Sexual Offences Act, 2012 and Sections 109, 376(2)(1), 377 and 506(ii) of the IPC. The 2nd accused in both cases is the wife of the petitioner herein. The petitioner was arrested in the aforesaid Crimes on 14.8.2016 and he has been in judicial custody since then. His earlier applications have been dismissed by co-ordinate Benches of this Court taking note of the nature of allegations against the petitioner, the tender age of the victims abused by the petitioner, the chances of him absconding from the process of law and other factors. Citing the long period of incarceration undergone, the delay in disposal of the case and the need to undergo surgery for a thyroid gland enlargement, the petitioner has again approached this Court seeking regular bail. 2. Before considering the submissions of the learned counsel, the prosecution allegation against him and his wife needs to be narrated in some detail. **B.A.Nos.4521 & 4577 OF 2021 5** a) The prosecution allegation in Crime No. 9 of 2016 is that the petitioner herein, who is a resident of Minicoy Island in the Laccadive Islands, is a seaman in the Indian Merchant Navy. He is allegedly a person wielding considerable influence and wealth. With the active aid and assistance of his wife, the 2nd accused, he is alleged to have procured a minor child aged 9 years, coming from an underprivileged background, and subjected her to rape and unnatural sexual assault. It is also alleged that the deviant and depraved acts committed by the petitioner were videotaped and the same was circulated by the petitioner, online as well as offline. In the course of the investigation, while the statement of the 2nd accused was recorded under section 164 of the Cr.P.C, she is alleged to have disclosed details of another incident of brutal sexual molestation by the petitioner of yet another minor girl, under the age of 13 years. Crime No.13 of 2016 was consequently registered on the strength of the revelations made by his wife. After registration of the Crime, a search was conducted in the residence of the petitioner at Minicoy, which yielded a huge cache of sex toys and other related gadgets, memory cards and mobile phones. The investigation was expedited and the final report was laid within the statutory period of 90 days. b) The petitioner was arrested in connection with the aforesaid crimes on 14.8.2016. He was initially granted bail by the Court of Session by order dated 2.11.2016, but the same was later set aside by this Court **B.A.Nos.4521 & 4577 OF 2021 6** by order dated 21.11.2016. He is still languishing in custody. c) After the submission of the final report, the investigation was made over to the CBI by the Lakshadweep Administration to ascertain whether the crime was committed by the petitioner which includes the circulation of photographs and videos of child abuse, had any national or international ramification. The CBI took up investigation and after an exhaustive investigation, came to the conclusion that the investigation conducted by them confirmed the charges levelled by the Lakshadweep police against the accused. They concluded that there are no materials to establish that the acts committed by the accused had any international or national ramifications. They laid a report before the Special Court to the effect that the Court can proceed on the strength of the charge sheet filed by the Lakshadweep Police against the accused. 3. The petitioner had earlier approached this Court and coordinate Benches of this Court have dismissed his application taking note of the extremely brutal nature of the allegations against the petitioner and also the reasonable prospects of him evading from the process of law if released on bail. Though the petitioner had raised a contention that he was entitled to statutory bail, the same was also rejected by this Court by detailed orders. However, taking note of the long delay in disposal of the matter, this Court while dismissing B.A.Nos. 976 and 972 of 2019 by order dated 10.4.2019 had ordered that the trial process in both the cases **B.A.Nos.4521 & 4577 OF 2021 7** should be completed within a period of six months from the submission of supplementary final reports by the CBI. It appears that by order dated 19.8.2019, the period was extended by a period of 5 months therefrom. As per the said directions, the trial ought to have been completed before 23.1.2020. In view of the pandemic and the consequent lockdown, the trial court was not able to complete the trial. 4. The petitioner had then approached this Court seeking regular bail. By a common order dated 8.6.2020 in B.A.Nos.3145 and 3047 of 2020, this Court had dismissed the application. This Court had held that the petitioner is not entitled to be released on bail and there was a further direction to the learned Sessions Judge to expedite the proceedings. 5. Sri.Saiby Jose Kidangoor, the learned counsel appearing for the petitioner submits that the records would reveal that the petitioner is undergoing judicial custody from 3.11.2016. He would contend that the trial had commenced on 17.1.2020 and the major witness has already been examined. However, due to the restrictions imposed due to the pandemic, the trial got delayed. It is submitted that there is no presiding officer in the District and Sessions Court, Kavaratti and therefore, there is every likelihood that the trial would be prolonged even further. The learned counsel submits that the petitioner has been diagnosed with multinodular goitre on the right side and a colloid nodule on the left side of the neck. He was referred for surgery from the Indira Gandhi Hospital, **B.A.Nos.4521 & 4577 OF 2021 8** Kavaratti to the General Hospital, Ernakulam, from where, he was referred to the Government Medical College, Kozhikode. Placing reliance on Annexures-I and J medical records, it is submitted that the physical condition of the petitioner is very bad and prays that he be enlarged on bail. 6. In view of the serious apprehension raised by Sri.Saiby Jose Kidangoor, the learned counsel appearing for the petitioner, this Court had directed the learned standing counsel to get instructions as regards the physical condition of the petitioner. 7. The learned standing counsel on instructions submitted that the doctor had opined that the petitioner would be admitted on 19.7.2021 and he needs only a standard surgical procedure which can be conducted on 20.7.2021. It is also stated that all the health parameters of the petitioner are normal as per the lab reports and the detailed diagnosis conducted in three hospitals. It is also stated that the petitioner may only require about 4 to 5 days post-surgical hospitalisation. 8. The learned counsel appearing for the petitioner submitted that the surgery was conducted only on 7.8.2021. Though it was stated before this Court that it would be a minor procedure, what was done was open surgery. It is also stated that the petitioner has been admitted to the ICU. **B.A.Nos.4521 & 4577 OF 2021 9** 9. In response, the learned standing counsel submitted that he has been admitted to the ICU only for the purpose of monitoring and the surgery was uneventful. 10. A statement has been filed by the learned Standing Counsel appearing for the Lakshadweep Administration, detailing the facts and circumstances. It is submitted that while dismissing the earlier applications, this Court had taken note of the serious nature of the allegations levelled against the petitioner. The only change of circumstance is that the petitioner has growth on the right side of his neck. It is stated that the petitioner was referred back to the Rajiv Gandhi Hospital at Kavaratti and that the surgery has been conducted successfully. It is submitted that the trial has reached the final stages and if the petitioner is now released on bail, there is every chance that the petitioner may abscond. 11. I have anxiously considered the submissions advanced. The essence of the allegation against the petitioner is that he had committed sexual assault on two children of tender age and coming from a very poor background. He is alleged to have subjected them to rape, unnatural sexual assault and videotaped the entire act. The petitioner is an affluent person and is a resident of Minicoy Island. He is also a seaman. The Coordinate Benches of this Court had considered the application for regular bail and it was taking note of the severity of the accusations, the tender **B.A.Nos.4521 & 4577 OF 2021 10** age of the victims and the chances of the petitioner absconding that the earlier applications were dismissed. While dismissing the earlier applications, this Court in paragraph Nos.12 to 14 had stated thus. “12. It is settled that among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail and finally (ix) the larger interest of the public or the State (See: **State of U.P through CBI v. Amarmani Tripathi** (supra), **Prahlad Singh Bhati v. NCT, Delhi & Anr** (AIR 2001 SC 1444); **Ram Govind Upadhyay v. Sudarshan Singh & Ors.** (AIR 2002 SC 1475) ; **Pratapbhai Hamirbhai Solanki v. State of Gujarat and Anr** (2013 (1) SCC 613). 13. There cannot be any doubt that the accusations against the petitioner herein is of the most extreme variety. The prosecution has made all efforts to complete the trial expeditiously. However, in view of the pandemic, the trial was disrupted. To understand whether the trial could be expedited, I had sought for a report from the learned Sessions Judge. The relevant part of the report reads thus: “Due to various reasons beyond our control trial could not be concluded within the time stipulated by the Hon'ble High Court. **B.A.Nos.4521 & 4577 OF 2021 11** Subsequently, on my request, the Hon'ble High Court extended time for the completion of trial. Despite the hectic and sincere efforts made by me, trial could not be completed within the extended period due to the lockdown imposed to prevent spreading of Covid19 virus. First accused is being defended by a mainland advocate, whose associate is a permanent resident of another island. On 18.03.2020, 1st accused filed an application praying for adjournment stațing that his advocates could not reach Kavaratti due to the restrictions imposed by the Government to contain spreading of Corona virus. Advocates appearing for the 1st accused did not appear before the court after 17.03.2020. It is impossible to examine witnesses through electronic media since Section 37 of the POCSO Act mandates that trial shall be conducted in camera. The witness list forwarded along with final report in C.C.06/2016 contains names of 30 persons. Out of the 30, 13 witnesses have been examined. Prosecution has given up 7 witnesses. 10 witnesses are yet to be examined in C.C.06/2016. The list of witnesses forwarded, along with the final report in C.C.01/2017 contains names of 13 persons. Out of these 13 witnesses, 4 were examined. Prosecution gave up 3 witnesses. 6 witnesses remain to be examined in C.C.01/2017. Almost all the witnesses remaining to be examined belong to other islands. During the monsoon season, it is not possible for the witnesses to attend the court for want of conveyance. Practically no progress can be made in cases in which presence of other islanders is necessary. Considering the prevailing peculiar situation the advocates appearing for the 1st accused cannot appear before the court before the end of monsoon. For the above stated reasons, I am of the view that it may **B.A.Nos.4521 & 4577 OF 2021 12** not be possible to dispose of these cases before 31-10-2020.” 14. It is apparent from the report of the learned Sessions Judge that the trial has reached a critical point and it is owing to the pandemic and the inability of the Advocate of the accused to appear before the Court that the same is being delayed. The prosecution cannot be blamed for the delay that has occasioned as many of the witnesses have already been examined. The petitioner admittedly is a seaman and the apprehension of the prosecution that if he is released, he may make himself scarce cannot be brushed aside. That was one of the reasons which led to the dismissal of the bail applications earlier as well. The learned Sessions Judge has reported that the trial can be completed before the end of October, 2020.” 12. However, it appears that the trial was further delayed due to various factors. The petitioner was also diagnosed with a growth on either sides of his neck. In view of the period of incarceration undergone by the petitioner, this Court had called for a report from the Court of Sessions. The relevant portion of the report of the learned Sessions Judge is extracted below: “3. In SC 1/2017 the accused are charge sheeted by the CI of Police [HQ] Kavaratti, alleging commission of offences punishable under Sections 4, 6, 8, 10 and 12 of the Protection of Children from Sexual Offences [POCSO] Act, 2012 and Section 109, 376(2)(1), 377 and 506(ii) of the IPC, in crime No.13/2016 of Minicoy Police Station. Whereas in C.C.6/2016 the accused are charge sheeted by the CI of Police [HQ] Kavaratti, alleging commission of offences punishable under Sections 4, 6, 8, 10, 12, 14(3) and 17 of the POCSO Act, and **B.A.Nos.4521 & 4577 OF 2021 13** Section 66(c) 67(a) (b)of IT Act, and Section 376(2) (1), 377 and 506(ii) of the IPC in Crime No.6/2016 of Minicoy Police Station. In C.C.6/2016, the prosecution has cited 30 witnesses and out of them 14 witnesses were examined in the said case. Moreover, 10 witnesses were given up by the learned Public Prosecutor and 6 witnesses remain to be examined and they are CW 15, 16, 24, 28, 29 and 30. At the same time, in C.C.1/2017, the prosecution has cited 14 witnesses and out of them 5 witnesses were examined. 5 witnesses were given up by the learned Public Prosecutor and 4 witnesses remain to be examined and they are CW2, 12, 13 and 14. 4. I may submit that the trial of the cases could not be completed due to the lock down declared by the Government to prevent spreading of Covid 19 virus. The 1st accused is being defended by an advocate from mainland. Moreover, most of the witnesses remained to be examined are from other islands and mainland. For want of proper conveyance, these witnesses cannot attend the court during monsoon season. In these circumstances, I request that I may be given six months time for disposal of the cases. 5. Moreover, on the basis of the request dated 14.6.2021 given by the Superintendent, Sub Jail, Kavaratti, stating that the 1st accused was referred to a Hospital in mainland for treatment, permission was granted to the jail Superintendent to take the accused to mainland for treatment and accordingly he was taken to General Hospital Ernakulam for treatment. Hence, on the basis of the direction given by the Hon’ble High Court, I issued a letter to the Superintendent, Sub Jail, Kavaratti, calling upon him to file a report as to whether any further treatment is necessary to the 1st accused and accordingly, he filed a report stating that the accused was taken to General Hospital, **B.A.Nos.4521 & 4577 OF 2021 14** Ernakulam for treatment and the General Surgeon referred the accused to Medical College Hospital, Kozhikode or Kottayam for further treatment. Hence, it is clear from the report given by the Superintendent sub jail Kavaratti that the 1st accused is suffering from physical ailment requiring treatment.” 13. The learned Sessions Judge has stated that the trial was delayed due to the fact that the witnesses are from other islands and the accused is defended by a counsel from the mainland. The Sessions Judge has expressed hope that the matter can be disposed of within a period of six months. 14. Though the period of incarceration undergone by the petitioner cannot be ignored, this Court cannot be unmindful of the severe nature of the accusation and the apprehension expressed by the prosecution that the petitioner, being a seaman in the remote islands of Lakshadweep, there is every chance that he may abscond. As held by the Apex Court in **Ram Govind Upadhyay v. Sudarshan Singh** (supra), while the liberty of an individual is precious and there should always be an all-round effort on the part of Courts to protect such liberties of individuals, but this protection can be made available to the deserving ones only. Liberty is to be secured through a process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim and also the collective interest of the community in order to ensure that parties do not lose faith in the institution and indulge **B.A.Nos.4521 & 4577 OF 2021 15** in private retribution. ## 15. In **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and** **Anr.** [JT 2012 (9) SC 155] , the Apex Court while dealing with individual liberty and cry of the society for justice has opined as under: “It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well - meaning person desires. 19. We are absolutely conscious that liberty is a greatly cherished value in the life of an individual, and no one would like to barter it for all the tea in China, but it is obligatory on the part of court to scan and scrutinize, though briefly, as regards the prima facie case, the **B.A.Nos.4521 & 4577 OF 2021 16** seriousness and gravity of the crime and the potentiality of the accused to tamper with the evidence apart from other aspects before the restriction on liberty is lifted on imposition of certain conditions." 16. Having regard to the entire aspects, I find no reason to enlarge the petitioner on bail. The learned Sessions Judge shall make every endeavour to dispose of the case within the time frame mentioned in the report. The learned counsel appearing for the accused shall also cooperate. These bail applications will stand dismissed. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** sru