Muhammed Ajmal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** **Bail Appl..No.8476 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 1474/2019 DATED 27-09-2019 OF SPECIAL COURT UNDER POCSO ACT, KANNUR CRIME NO.932/2019 OF Thaliparamba Police Station , Kannur** ## **PETITIONER/S:** **MUHAMMED AJMAL, AGED 20 YEARS S/O ASHARAF.T.K,NETTANIGE,MUDRAKOCHI , NETTANIGE.PO, MULLERIA(VIA), KASARGOD DISTRICT-671543.** **BY ADVS. SRI.K.S.MADHUSOODANAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER SRI.M.J.KIRANKUMAR** ## **RESPONDENT/S:** **1 STATE OF KERALA TO BE REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031. 2 STATION HOUSE OFFICER, THALIPARAMBA POLICE STATION, THALIPARAMBA,KANNUR-670141.** ## **OTHER PRESENT:** **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: **Bail Appl..No.8476 OF 2019** ## **ALEXANDER THOMAS, J** . ----------------------------B.A.No.8476 Of 2019 --------------------------------Dated this the 12[th] day of December, 2019. ## **O R D E R** The petitioner herein has been arrayed as the sole accused in the instant Crime No.932/2019 of Thaliparamba Police Station, Kannur District, which has been registered for offences punishable under Secs.376, 363 & 506 of the I.P.C and Secs.3, 4, 5l & 6 of the POCSO Act, 2012 and Sec.67B of the Information Technology Act. The abovesaid crime has been registered on the basis of the FI statement given by the lady victim, now aged 19 years, on 25.8.2019 at about 7:50 p.m. in respect of the alleged incidents happened for the period from 1.7.2017 to 31.7.2017. 2. The prosecution case in short is that in July, 2017, when the victim was a minor then aged 17 years, the petitioner maintained a love affair with her and had enticed her and taken her in a car from Taliparamba to Dharmasala and had taken her to a tile shop lying in an isolated place where he had sexual intercourse with her and later she had given her nude pictures to the petitioner, which the petitioner had later used with the threat that he would divulge it to others and he threatened that he would divulge her ::3:: **Bail Appl..No.8476 OF 2019** nude photos to her family when the lady defacto complainant tried to withdraw from love affair and thereby the accused has committed the abovesaid offences. 3. Sri.K.S.Madhusudanan, learned counsel for the petitioner would submit that the abovesaid allegations of alleged commission of offence are absolutely false and fabricated and truth of the matter is other way around. Further the learned counsel for the petitioner would urge that the alleged incidents had happened on January, 2017, whereas the FIR was lodged as late as on 25.8.2019 and the long delay of 25 months between the date of the alleged incidents and the date of lodging of the FI statement has not been remotely explained by the prosecution in any manner and the said long and unexplained delay in lodging of the FIR would fatally vitiate the impugned criminal proceedings as it affects the very believability and credibility of the prosecution story. Further it is true that the petitioner was having a love affair with the lady de facto complainant and it was a voluntarily decision taken by both of them knowing fully well that the petitioner belongs to Islam religion where as the lady de facto complainant and her family members belong to Christianity faith and the allegations of sexual intercourse are absolutely false and baseless. That the family members of the ::4:: **Bail Appl..No.8476 OF 2019** lady de facto complainant are trying to separate the minor girl from the love affair presumably due to the difference in the religious community. Further that on 26.3.2018, on account of the continued love between them, her family members called the petitioner to reach her home and on reaching there, the Police authorities had taken him into the Police Station where they brutally assaulted the petitioner whereby his spinal cord was injured and rendered several treatments and he is totally bed ridden. That it was the lady de facto complainant herself, who voluntarily sent her nude pictures taken in her mobile phone, after he had received serious spinal injury consequent to the high handed action of the Police inflicted on him at the instance of the victim's family members. Anx-A4 is stated to be the discharge medical summary records issued by the Speciality Hospital, which would show that he had to suffer disc prolapse from the spinal injury. The petitioner was later constrained to submit Anx-AII complaint dated 18.8.2019 before the 2[nd] respondent-SHO, Taliparamba Police Station, about the violence inflicted on him by the abovesaid Police authorities and no action was taken thereon. Thereafter the petitioner was constrained to submit Anx-AIII to the State Police Chief in which the said Police Chief has forwarded the complaint to ::5:: **Bail Appl..No.8476 OF 2019** the Dy. S.P. of the District Crime Branch concerned and the petitioner was summoned to appear before the said authorities and his statement was also recorded. That presumably on the basis of the high influence by the de facto complainant's family members, the Police has not acted on the complaints given by the petitioner as per Anxs-AII & AIII. Anx-AV(2) is stated to be the screen shot of the TV news which is in relation to the incidents of the petitioner having suffered the injury, etc. That the lady de facto complainant and her family members were having serious apprehension that the petitioner might set in motion criminal proceedings against them and the police on account of the spinal injury suffered by him and it is only on that score that the lady de facto complainant has instituted the present false allegations. The learned counsel for the petitioner would urge that this Court may grant anticipatory bail to the petitioner subject to any stringent conditions. 4. The learned Prosecutor has seriously opposed the plea for anticipatory bail and has pointed out that the mere delay in filing the FIR will not imply that the allegations are untrue and the matter requires serious investigation. On being queried as to the allegations raised by the petitioner that he was inflicted spinal injury on account of the high handed action of the respondents at ::6:: **Bail Appl..No.8476 OF 2019** the instigation of the family members of the lady and also about Anxs-AII & AIII, etc., the learned Prosecutor wanted further time to get instructions in that regard. It is by now too well established to require citation of any judicial authority that the Apex Court in cases as in _**Thulia Kali v. The State of Tamil Nadu**_ [AIR (1973) SC 501] para 30, has laid down the legal principles regulating the delay in lodging the First Information Reports and that wherein it has been held that delay in registration of the FIR will more often than not, result in embellishments and exaggerations, which are creations of afterthoughts. Delayed report, not only gets bereft of the advantages of spontaneity, but the danger of introduction of coloured versions exaggerated account of incidents or a concocted story as a result of deliberations and consultation also creeps in, which would cast a serious doubt, very veracity of the prosecution story. Therefore, it has been held that it is highly essential that the delay in lodging the FIR should be satisfactorily explained by the prosecution, etc. It would also be apposite to refer to the decision of the Apex Court in _**State of Andhra Pradesh v. M.Madhusudhan**_ _**Rao**_ [(2008) 15 SCC 582]. The learned Prosecutor has also submitted that there is strong possibility of the petitioner influencing and intimidating the witnesses including the lady ::7:: **Bail Appl..No.8476 OF 2019** victim, if he is let out of on bail. 5. The learned counsel for the petitioner would point out that petitioner's condition is pathetic and that on account of the serious spinal injury that he has sustained as reflected in Anx-AIV medical records, he is not even able to move out and that custodial detention would be highly detrimental to his health and that the petitioner will fully co-operate with the Investigating Officer in the interrogation process. 6. After hearing both sides and on a careful evaluation of the facts and circumstances and taking into account the long and unexplained delay of about 25 months in the lodging of the present FIR, this Court is constrained to take the view that the issue of delay would loomlarge in this case and this Court cannot brush it aside at least for the limited purpose of consideration of anticipatory bail plea and to do so would be to turn a “Nelson's eye”, to the basic and elementary principles of criminal jurisprudence, which still govern the field. The legal system would require not merely “ _praxis_ ”, but also “ _theoria_ ” and a fine blend and harmony of both “ _theoria_ ” and “ _praxis_ ” is required for the sustenance of any organized system like the one in our organic legal system. ::8:: **Bail Appl..No.8476 OF 2019** 7. Accordingly, after evaluation of the facts and circumstances, more particularly, taking into account the long and unexplained delay of more than 25 months in lodging the FIR and also the fact regarding the precarious health condition of the petitioner on account of the spinal injury, etc., as reflected in AnxAIV medical records, etc., this Court is inclined to take the view that the petitioner has made out a strong probable case that custodial interrogation of the petitioner may not be necessary or warranted for the smooth and fair conduct of the investigation. The learned Prosecutor would submit that the petitioner has not so far appeared for interrogation process. However, taking note of the apprehension raised by the Prosecutor, it is ordered that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the lady de facto complainant is residing until the conclusion of the trial process, subject to certain exceptions, which will be dealt with hereinafter. It is brought to the notice of this Court that the lady de facto complainant is residing within the territorial limits of Sreekandapuram Police Station whereas the petitioner is residing within the territorial limits of Taliparamba Police Station. Accordingly the following orders are passed: ::9:: **Bail Appl..No.8476 OF 2019** The petitioner will personally appear before the Investigating Officer concerned for interrogation process without any further delay, at any rate, by 9:00 a.m. on any day on or before 15.1.2020 or within such extended time limit that may be stipulated by the Investigating Officer in that regard. The petitioner may send his authorised representative/counsel to the Investigating Officer concerned and also submit the medical certificate and may also intimate the Investigating Officer on which day he can appear for interrogation process. After examining the medical condition, the Investigating Officer will be at liberty to extend the time limit if it is so found necessary. The petitioner thereafter will co-operate with the Investigating Officer in the interrogation process. After the interrogation process is over, in case the Investigating Officer arrests the petitioner, then he shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Forty Thousand only) and on furnishing two solvent sureties for the like sum each, both to the satisfaction of the Investigating Officer concerned. However, the grant of bail will be subject to the following conditions: - _i. The petitioner shall report before the Investigating Officer as and when required in that connection._ - _ii. The petitioner shall fully co-operate with the investigation. The petitioner shall fully co-operate with medical test, including the potency test, if so_ ::10:: **Bail Appl..No.8476 OF 2019** _necessitated by the Investigating Officer in that regard. The Investigating Officer will take into account the medical condition of the petitioner so that such steps could be done taking into account the health condition of the petitioner for such test, etc._ - _iii. The petitioner shall not involve in any criminal offences of similar nature._ - _iv. The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _v. The petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the lady de facto complainant is residing until the conclusion of the trial process except for the limited purpose of reporting before the Investigating Officer in this case or in any other crimes and for attending to the court in connection with this case or any other cases or for contacting his lawyer, etc._ - _vi. However if on account of any emergent personal needs the petitioner wants to visit the said area, she may do so but only with the prior permission of the Investigating Officer concerned._ - _vii. If the petitioner violates all or any of the bail conditions, then the jurisdictional court concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law._ With these observations and directions, the above Bail ## Application will stand disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/-