MUHAMMED NILAMUDHEEN v UNION TERRITORY OF LAKSHADWEEP and THE STATION HOUSE OFFICER, ANDROTH POLICE STATION

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941** ## **Bail Appl..No.5460 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 18/2019 DATED 22-07-2019 OF DISTRICT COURT, KAVARATHY** **CRIME NO.30/2019 OF Anthroth Police Station , Lakshadweep** ## **PETITIONER/S:** ## **MUHAMMED NILAMUDHEEN** **AGED 27 YEARS** **S/O. KIDAVE, KADAPPURATHPURA HOUSE, ANDROTH ISLAND. U.T. LAKSHADWEEP.** ## **BY ADV. SRI.BABU S. NAIR** ## **RESPONDENT/S:** - **1 UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031.** - **2 THE STATION HOUSE OFFICER, ANDROTH POLICE STATION, ANDROTH ISLAND, U.T. OF LAKSHADWEEP, 682 551.** **BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP** - **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** - **13.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.5460 OF 2019 2 ## **ALEXANDER THOMAS, J. ----------------------------------------B.A. No. 5460 of 2019 ----------------------------------------Dated this the 13[th] day of August, 2019** ## **O R D E R** The petitioner herein has been arrayed as the sole accused in Crime No.30/2019 of Androth Police Station (in the U.T. of Lakshadweep), which has been initially registered for offences punishable under Secs.12 r/w 11(i) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 on the basis of the statement given by the minor victim girl, now aged 16 years before the Judicial First Class Magistrate Court, Androth under Sec.161 Cr.P.C. Initially, crime No.22/2019 was registered on the basis of the written complaint dated 30.05.2019 submitted by the father of the minor victim girl in which the accused therein was arrested and the statement of the victim under Section 164 Cr.P.C. was recorded on 30.05.2019, wherein she narrated about the sexual abuse committed by the accused in Crime No.22/2019. Later, she gave another complaint to the learned Magistrate on 06.06.2019 revealing the number of incidents of sexual abuse faced by her from a very young age and those allegations involved about the 19 other persons in respect of 19 separate incidents for which 19 separate crimes were also registered. The instant crime No. 30/19 of Androth Police Station is one among such subsequently registered 19 crimes. The petitioner herein Bail Appl..No.5460 OF 2019 3 has been arrested on 22.06.2019 and has been under judicial custody since then. 2. The respondent prosecution agency of the U.T. Of Lakshadweep has now filed a statement dated 07.08.2019 through the learned senior Central Government Standing Counsel for the Lakshadweep administration. In paragraph 3 of the statement, it is averred that later the statement of the minor victim girl was recorded by a woman police officer as mandatory under Section 24 of the POCSO Act and the said statement given by the victim revealed the particulars of sexual assault by the petitioner in this case and that on the basis of the said statement, the prosecution agency has now added the offences as per Secs.4 r/w 3(c) of the POCSO Act, 2012 and Secs. .376(i), 375(C), 323, 354, 354(A), 354 (B), 354(D) of IPC. That a special report dated 22.07.2019 was submitted before the Special court notified to deal with POCSO cases in Kavaratti Island, UT of Lakshadweep for committing the abovesaid offences in the instant crime No.30/2019. 3. The learned senior Central Government Standing Counsel appearing for the respondent Lakshadweep administration has also made available the copy of the said subsequent statement made by the victim girl under Section 24 of the POCSO Act and has also invited this Court’s attention to the specific version given by the minor victim girl as answer to question No.7 thereon and the same reads as follows: Bail Appl..No.5460 OF 2019 4 Q.7 ÉßKàæ¿æKCßÜᢠÎáÆßX §BæÈ çÎÞÖæMG øàÄßÏßW Ø¢ØÞøߺîßGáçIÞ? ®æLCßÜᢠæºÏñßGáçIÞ? ➔¥æÄ. çºÞÆߺîßGßGáIí. ²øá ÆßÕØ¢ ηíøßÌí ÌÞCí Õß{ßAáK ØÎÏJí ¾ÞX ¾B{áæ¿ Õà¿ßæa µáùºîí ÆâæøÏáU §¿ÕÝßÏßÜâæ¿ ÕøáK çÈø¢ ¥Äßæa ¥¿áJáU µÞGßW æÕºîí ®æK É߿ߺîí ÈßÜJí µß¿Jß. ¾ÞX ²ºîÕºîçMÞZ ®æa ÕÞÏ æÉÞJßÉß¿ßAáµÏá¢, ¥ÎVJáµÏᢠæºÏñá. ¥çMÞ ®ÈßAí çÕÆÈߺîá. ®KßGí ®æa ÎáÜ É߿ߺîÎVJáµÏᢠ®æa Îáµ{ßW µß¿Kí ®æa ÉÞÕ¿ Îáµ{ßçÜAáÏVJÞX çÈÞAáµÏá¢, ¦ çÈø¢ ¥Õßæ¿ ÈßKᢠ²øá ÕIßÏáæ¿ ÖÌíÆ¢ çµGÄí µÞøâ ®æK ÕßGßGí ³¿ß çÉÞÕáµÏᢠæºÏñá. 4. On the basis of the abovesaid aspects, Sri.Babu S. Nair, learned counsel for the petitioner/accused would submit that even if it is assumed for argument sake, that the allegations raised by the minor victim girl in her additional statement are accepted as fully true, even then at best, the prosecution can argue that a case of offence of sexual assault as per Section 7 of the POCSO Act which is punishable under Section 8 of the Act. Whereas Sri.S.Manu, learned senior Central Government Standing Counsel would urge that going by the abovesaid factual allegations of the minor victim girl, the offence as per Section 376 (c) of the IPC is made out and the said aspect has also been so held by the Special Court in the impugned order refusing to grant regular bail. Clause c of Section 375 of IPC stipulates that a man is said to commit ‘rape’ if he manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person etc. Bail Appl..No.5460 OF 2019 5 5. Sri.S.Manu, learned Central Government Standing Counsel submits that going by the allegations disclosed in the additional statement given by the minor victim girl under Section 24 of the POCSO Act, the ingredients of the offence as per Section 375 (c) of the IPC is made out and that the learned Special Sessions court has also so held in the impugned order refusing to grant regular bail. 6. After hearing both sides, it is seen that the specific version given by the minor victim girl as quoted hereinabove is that the accused had laid over her body and had made effort to lift her skirt and at that time, he heard the noise of an incoming vehicle and then he fled away. Therefore, going by the abovesaid admitted version of the minor victim girl, prima facie, it appears that it cannot be said that the necessary ingredients of clause c of Section 375 of the IPC are disclosed. Sri.S.Manu, would point out as an alternate plea that even if it is so assumed, then the offence of attempt to commit rape as per Section 511 of Section 376 of the IPC is made out going by those allegations. Even if it is assumed that offence of attempt to commit rape as per Section 511 of Section 376 of the IPC is made out, then the following aspects are relevant. _**511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment. -** Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of_ Bail Appl..No.5460 OF 2019 6 _such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.”_ 7. Sri.Babu S.Nair, learned counsel for the petitioner strongly urge that his party has been falsely implicated in the instant case and that the present accused has suffered detention for last more than 51 days and that this Court may order to release him on regular bail subject to stringent conditions to protect the bonafide interest of the prosecution. 8. Sri.S.Manu, learned senior Central Government Standing Counsel appearing for the respondent Lakshadweep administration has seriously opposed the plea of regular bail and has also submitted that on the basis of the averments in the statement filed by the respondent, that the relatives of the accused in all these connected cases have been together making various attempts to intimidate the victim girl and her family and they were even pressurized to leave the island and it is with the intent to thwart the entire investigation and that if the accused is released on regular bail in such circumstances, the same will adversely affect the investigation process. Further, it is submitted by Sri.S.Manu, learned senior Central Government Standing Counsel that the minor victim girl and her parents are permanent residents of Androth Island and now she has been taken to Kavaratti Island for psychological counseling and after the said process is Bail Appl..No.5460 OF 2019 7 over, she will have to return back to Androth Island and that the accused is also residing in Androth Island and that it is very likely that he would intimidate or influence the witnesses more particularly, the minor victim girl, if he is let out on bail. Further, since there are 19 connected crimes, there is every possibility of the accused herein to convince the other accused, if they are let out on bail and to intimidate the witnesses and to tamper with the evidence. 9. After hearing both sides, this Court is inclined to take the view that the offences disclosed in this case are very serious and grave and the investigation has not so far been completed. Moreover, the learned senior Central Government Standing Counsel has also pointed out that recently a Test Identification Parade has been conducted and the minor victim girl has identified the present accused. Having regard to all these aspects, this Court is not inclined to consider the plea for grant of regular bail. 10. As mentioned hereinabove, even if it is assumed that the abovesaid additional allegations made by the victim girl at best, constitute only the offence as per Section 511 of Section 376 of the IPC (attempt to commit rape) or a case of sexual assault as per Section 7 of POCSO Act, which is punishable under Section 8 of the POCSO Act, the following aspects are borne out. It is pointed out that in such a case, the default period for grant of statutory default bail would be 60 days from the date of the remand. Sri.S.Manu, learned senior Central Government Standing Bail Appl..No.5460 OF 2019 8 counsel, would point out that the allegations now newly added are those under Section 376(i) of the IPC r/w Section 376(c) of the IPC etc. and therefore, the default period for grant of statutory default bail would be 90 days and not 60 days. 11. Assuming that the averments or the allegations in the abovesaid statement given by the victim girl under Section 24 of the POCSO Act are fully correct etc., then an offence of sexual assault as per Section 7 of the POCSO Act which is punishable under Section 8 of the POCSO Act could be made out. Even if it is assumed that a case of attempt to commit rape could possibly be the endeavoured to be made out by the prosecution, the offences is as per Section 511 of Section 376 of the IPC. Assuming that such offences lie, then the maximum punishment for the offence as per Section 8 of the POCSO Act could be imprisonment which shall not be less than 3 years but which may extend to 5 years. So also the maximum punishment for Section 376 is life sentence and then going by the prescriptions in Section 511 of the IPC, the offence of attempt to commit rape (Section 511 of Section 376 IPC) would be punished for a term which may extend to onehalf of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. Section 57 of the IPC provides as follows: _“_ _**57. Fractions of terms of punishment.-** In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent_ Bail Appl..No.5460 OF 2019 9 _to imprisonment for twenty years.”_ 12. Section 57 of the IPC deals with fractions of terms of punishment, stipulates that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. Since if that is the position, the purpose of the maximum punishment that could be imposed by way of imprisonment for the offence of attempt to commit rape as per Section 511 of Section 376 of the IPC would be one-half of 20 years which would thus extend upto 10 years. 13. Going by the dictum laid down by the three judges bench of the Apex Court in _**Rakesh Kumar Paul v. State of Assam [2017 (15) SCC 67],**_ where the maximum punishment by way of imprisonment for the offence is the imprisonment which could extend upto 10 years, then the default period for the accrual of the statutory default bail in terms of Section 167(2) Cr.P.C.would be 60 days from the date of the remand and this would be completed by about 21.08.2019, in case the final report is not filed by then. According to the petitioner, the 60 days default period from the date of the remand in this case would fall on 21.08.2019. Therefore, if the investigating agency is not able to file the final report in this crime within the said default period of 60 days, then certainly it is open to the petitioner/accused to seek the benefit of statutory default bail period as on that day. Bail Appl..No.5460 OF 2019 10 14. Sri.S.Manu, learned senior Central Government Standing Counsel would submit that the efforts are being taken by the police authorities concerned to file the final report after getting approval of the superior authority without any further delay. Hence, it is for the petitioner to work out his remedies in accordance with law, if he has got a case that the final report in this case is not filed within the outer time limit of 60 days from the date of remand of the case. Further, after hearing both sides, this Court is constrained to take the view that this Court is not in a position to accede to the request of the petitioner for grant of regular bail at this stage. 15. However, it is made clear that if the investigating agency is not able to file final report in this crime within the abovesaid default period of 60 days and the applicant makes a motion for statutory default bail within time and in case said court orders to grant statutory default bail, then the said court will ensure that the necessary conditions are also imposed in the order granting such bail and in that regard, the specific contentions raised by the respondent prosecution agency about the serious likelihood of the accused intimidating and influencing the minor victim girl and her family members etc should be duly taken into account by the Special Court and the Special Court may consider whether direction should be issued to ensure that the accused does not reside anywhere within the territorial limits of the police station where the minor victim girl is residing until the Bail Appl..No.5460 OF 2019 11 conclusion of criminal proceedings. With these observations and directions, the above regular bail application stands dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** SKS