MUSTHAFA v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY, THE 16[TH] DAY OF APRIL 2024 / 27TH CHAITHRA, 1946 BAIL APPL.NO.2653 OF 2024 ``` ``` CRIME NO.283/2024 OF OTTAPALAM POLICE STATION, PALAKKAD AGAINST THE ORDER DATED 22.03.2024 IN CRMP NO.1544 OF 2024 OF SPECIAL COURT UNDER POCSO ACT, PALAKKAD PETITIONER/ACCUSED: ``` ``` MUSTHAFA AGED 50 YEARS S/O.MOIDEEN, KURIYIL HOUSE, KOLOTHU KUNNU, OTTAPALAM EAST, PALAKKAD, PIN - 679101 ``` ``` BY ADVS. ANAND KALYANAKRISHNAN C.DHEERAJ RAJAN ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031 ``` ``` BY SMT.C.SEENA, PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 16.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A. No.2653 of 2024 2 ## **`P.V.KUNHIKRISHNAN, J.`** ``` ------------------------------------------- B.A.No.2653 of 2024 ``` ``` ------------------------------------------- Dated this the 16[th] day of of April, 2024 ``` ## **`O R D E R`** ``` Petitioner is the sole accused in Crime No.283/2024 of Ottapalam Police Station. The above case is registered alleging offences punishable under Sections 354, 354A(1)(i) of the Indian Penal Code and under Section 8 read with 7, Section 10 read with 9(1) of the Protection of Children from Sexual Offences Act, 2012. ``` ``` 2. The prosecution case is that in the month of December, 2022, the petitioner, who is the neighbour of the survivor, a minor girl aged 11 years, knowing that she is a minor, laid himself on the lap of the survivor and kissed and pinched on the private parts over the dress and further pressed on her lips and breasts and thus committed ``` B.A. No.2653 of 2024 3 ``` the above offences. The petitioner was arrested on 06.03.2024. ``` **`3. Heard the learned counsel for the`** **`petitioner and the learned Public Prosecutor.`** ``` 4. The learned counsel for the petitioner submits that the petitioner is in custody from 06.03.2024 onwards. The learned counsel also submits that there is a long delay in filing the complaint and that itself shows that the case is falsely foisted against the petitioner. It is also submitted that the petitioner is ready to abide any conditions if this Court release him on bail. ``` ``` 5. The learned Public Prosecutor seriously opposed the bail application. The learned Public Prosecutor submits that the allegation against the petitioner is very serious and he committed a sexual offence against a minor girl. ``` **`6. This Court considered the contentions of`** B.A. No.2653 of 2024 4 ``` the petitioner and the learned Public Prosecutor. It is true that the allegations against the petitioner is very serious in nature. But it is a fact that the petitioner is in custody from 06.03.2024 onwards. It is contended by the petitioner that there is a long delay in filing the complaint. The alleged incident happened in December, 2022 and the victim revealed the above incident only on 29.02.2024. But the delay is to be explained by the victim at the time of trial. That itself is not a ground to grant bail. But considering the facts and circumstances of the case and the fact that the petitioner is in custody from 06.03.2024, I think that this bail application can be allowed on stringent conditions. There can be a direction to the petitioner not to enter the jurisdictional limits of Ottapalm Police Station for a period of 60 days ``` B.A. No.2653 of 2024 5 ``` or till final report is filed. ``` ``` 7. 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. ``` ``` 8. 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 directions: ``` ``` i. Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for ``` B.A. No.2653 of 2024 6 ``` the like sum to the satisfaction of the jurisdictional Court. ``` ``` ii. 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. ``` ``` iii. Petitioner shall not leave India without permission of the jurisdictional Court. ``` ``` iv. Petitioner shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which he is suspected. ``` ``` v. The petitioner shall appear before the investigating officer on all Mondays till final ``` B.A. No.2653 of 2024 7 ``` report is filed. ``` ``` vi. The petitioner shall not enter the limits of Ottapalam Police Station for a period of 60 days or till final report is filed. I make it clear that the petitioner can enter the jurisdiction only for the purpose of appearing before the Investigating Officer. ``` ``` vii. The petitioner shall furnish the address of the place where he is going to reside and the Phone Number to the Investigating Officer. ``` ``` viii. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. ``` ## **`Sd/-`** ``` P.V.KUNHIKRISHNAN JUDGE ``` ``` sp/16/04/2024 ``` B.A. No.2653 of 2024 8 ## **`APPENDIX OF BAIL APPL. 2653/2024`** ``` PETITIONER'S EXHIBITS:- ``` ``` Annexure 1 ``` ``` THE TRUE COPY OF THE ORDER DATED 22.03.2024 IN CRL MP NO. 1544/2024 ON THE FILES OF ADDITIONAL SESSIONS JUDGE- I, PALAKKAD (SPECIAL JUDGE) ```