Moosa Kunnugothi v. The Administrator, Union Territory of Lakshadweep & Investigating Officer, CBI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** ## **Bail Appl..No.3145 OF 2020** **CRIME NO.13/2016 IN MINICOY POLICE STATION IN CC 1/2017 OF DISTRICT AND SESSIONS COURT, KAVARATHY** ## **PETITIONER/A1:** **MOOSA KUNNUGOTHI AGED 46 YEARS S/O. YOUSUF, KUNNUGOTHI HOUSE, KUDHEHI VILLAGE, MINICOY ISLAND, UT OF LAKSHADWEEP.** **BY ADV. SRI.SAIBY JOSE KIDANGOOR** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 THE ADMINISTRATOR, U T OF LAKSHADWEEP UT OF LAKSHADWEEP, REP. BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM.** - **2 INVESTIGATING OFFICER, CBI, SCB,TRIVANDRUM, KERALA.** **R1-2 BY SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.06.2020 ALONG WITH B.A.NO.3047/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..Nos.3145 &3047/2020 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** **Bail Appl..No.3047 OF 2020** **CRIME NO.9/2016 OF MINICOY POLICE STATION, LAKSHADWEEP IN CC 6/2016 BEFORE THE DISTRICT & SESSIONS COURT, KAVARATHY** ## **PETITIONER/A1:** **MOOSA KUNNUGOTHI AGED 46 YEARS S/O .YOUSUF, KUNNUGOTHI HOUSE, KUDHEHI VILLAGTE,MINICOY ISLAND, UT OF LAKSHADWEEP.** **BY ADVS. SRI.SAIBY JOSE KIDANGOOR SRI.P.M.MOHAMMED SALIH SRI.BENNY ANTONY PAREL SMT.S.SIBHA KUM.PARVATHY VIJAYAN** ## **RESPONDENTS/STATE & COMPLAINANT:** - **1 THE ADMINISTRATOR, U T OF LAKSHADWEEP U T OF LAKSHADWEEP,REP.BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM.** - **2 INVESTIGATING OFFICER, CBI,SCB,TRIVANDRUM , KERALA.** **R1-2 BY SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.06.2020 ALONG WITH B.A.NO.3145/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..Nos.3145 &3047/2020 3** ## **ORDER** These applications are filed under Section 439 of the Code of Criminal Procedure. 2. These applications are taken up and heard through Videoconferencing. 3. The petitioner herein is the accused in C.C.No. 1 of 2017 and 6 of 2016 pending on the files of the Sessions Court, Kavaratti, Union Territory of Lakshadweep. In these cases, he stands chargesheeted for having committed offence 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 Indian Penal Code. The 2[nd] accused in both the Crimes is the wife of the petitioner herein. The aforesaid cases have arisen from Crime No.9 of 2016 and Crime No.13 of 2016 of the Minicoy Police Station. 4. The prosecution allegation in Crime No. 9 of 2016 is that the petitioner herein, resident of Minicoy Island in the Laccadive Islands is seaman in the Indian Merchant Navy. He is allegedly a person wielding considerable influence and wealth. With the active aid and **Bail Appl..Nos.3145 &3047/2020 4** assistance of his wife, the 2[nd] accused, he is alleged to have procured a minor child aged 9 year, 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 CrPC was recorded, she is alleged to have disclosed about 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 accordingly registered on the strength of the revelations made by his wife. After registration of the Crime, a search conducted in the residence of the petitioner at Minicoy, 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 90 days. 5. 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 by order dated 21.11.2016. He is still languishing in custody. 6. It appears that after submission of the final report, the **Bail Appl..Nos.3145 &3047/2020 5** investigation was made over to the CBI by the Lakshadweep Administration to ascertain whether the crime committed by the petitioner which include 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. 7. 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. **Bail Appl..Nos.3145 &3047/2020 6** 976 and 972 of 2019 by order dated 10.4.2019 had ordered that the trial process in both the cases 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. 8. It is in the above backdrop, the petitioner has approached this Court seeking regular bail. 9. Sri.Saiby Jose Kidangoor, the learned counsel appearing for the petitioner, submitted that trial has commenced in these cases and examination of all the major witnesses have been completed. In view of the pandemic, the trial has been adjourned sine die and the prospects of the trial commencing in the near future is remote. He would contend that the petitioner has been in custody from 14.8.2016 and as there is no possibility of recommencing the trial in the near future, it is only just and proper to release him on bail. The learned counsel would further contend that confinement of the petitioner in jail during the period of pandemic is unjustified as there is every possibility of the petitioner **Bail Appl..Nos.3145 &3047/2020 7** getting infected with the virus. 10. Sri.Manu.S., the learned Standing counsel appearing for the Lakshadweep Administration, has opposed the prayer. He submitted that the investigation has revealed that the petitioner has sexually molested two minor children using sex toys, raped them, and also subjected them to unnatural sexual abuse. He is also alleged to have recorded the acts and circulated it. The acts committed by the petitioner are so depraved and diabolic that his request for bail has consistently been rejected by this Court. The considerable influence that he and his family commands in the locality and also the proximity of the islands to the international waters is highlighted by learned standing counsel to interdict the request for release of the petitioner. The mere fact that he has been in custody for some time by itself would not entitle him to enlarge on bail, contends the learned counsel, relying on the judgment of the Apex Court in **State of U.P through CBI v. Amarmani Tripathi** .[1] He would further contend that the Sessions Court is proceeding the trial in an expeditious manner and it was due to the pandemic and also due to the inconvenience of the advocate appearing for the petitioner, who is from the mainland, to participate in the trial proceedings that the trial has been delayed. He would contend that the apprehension of the learned 1 AIR 2005 SC 3490 **Bail Appl..Nos.3145 &3047/2020 8** counsel that he would get infected with the virus is baseless as the petitioner is the only person who is detained in the prison at Kavaratti. 11. I have anxiously considered the submissions advanced and have perused the materials which are made available. 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[2]** ; **Ram Govind Upadhyay v. Sudarshan Singh & Ors.[3]** ; **Pratapbhai Hamirbhai Solanki v. State of Gujarat and Anr[4] .** 2. AIR 2001 SC 1444 3. AIR 2002 SC 1475 4. 2013 (1) SCC 613 **Bail Appl..Nos.3145 &3047/2020 9** 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. 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 Covid-19 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 **Bail Appl..Nos.3145 &3047/2020 10** 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 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 **Bail Appl..Nos.3145 &3047/2020 11** 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. 15. I am not impressed with the contention of the learned counsel that detention in custody of the petitioner herein since the date of his arrest would entitle him to be released on bail. As held by the Apex Court in **Ram Govind Upadhyay v. Sudarshan Singh** (supra), while 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 in private retribution. 16. In **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and Anr.[5]** , 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 5 [JT 2012 (9) SC 155] **Bail Appl..Nos.3145 &3047/2020 12** 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 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." 17. In view of the principles laid in the above precedents, I am **Bail Appl..Nos.3145 &3047/2020 13** of the view that the petitioner is not entitled to be released on bail at this stage. If the defense counsel cooperates, the trial can be expedited for which all efforts shall be taken by the learned Sessions Judge. These applications will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** PS