Niyas M v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 11[TH] DAY OF APRIL 2023 / 21ST CHAITHRA, 1945** **BAIL APPL. NO. 5157 OF 2022** _**(Arising out of Crime No. 1097 of 2021 of Ramapuram Police Station, Kottayam Dist.)**_ ## **PETITIONER/S:** **NIYAS M, AGED 27 YEARS, S/O MUHAMMED NIZAR, ARANGATH HOUSE, CHERPPULASSERY P.O., PALAKKAD DISTRICT, PIN - 679503** **BY ADVS. ANAND KALYANAKRISHNAN C.DHEERAJ RAJAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SRI. S.U.NAZAR-ADDL. PUBLIC PROSECUTOR, SRI. TOM JOSE PADINJAREKKARA-AMICUS CURIAE,** **SRI. SUMAN CHAKRAVARTHY-AMICUS CURIAE, SMT. SAIPOOJA-AMICUS CURIAE** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON 11.4.2023 DELIVERED THE FOLLOWING:** ## **ALEXANDER THOMAS & C.S.SUDHA, JJ.** ================== B.A.No. 5157 of 2022 _(Arising out of Crime No. 1097 of 2021 of Ramapuram Police Station, Kottayam Dist.)_ ================== Dated this the 11[th] day of April, 2023 ## **O R D E R** ## **ALEXANDER THOMAS,J.** The aforecaptioned application has been filed under Sec. 438 of the Cr.P.C. seeking anticipatory bail in regard to the involvement of the applicant herein as the sole accused in the instant Crime No. 1097/2021 of Ramapuram Police Station, Kottayam District, which has been registered for offences punishable under Sec. 354A(1)(ii)(iv), 354A(2), 354A(3) of the I.P.C., Sec. 12 read with Sec. 11(ii) (iv) of the Protection of Children from Sexual Offences (POCS) Act, 2012 and Sec. 67B(b) of the Information Technology Act. 2. The brief of the prosecution case is that the sole accused, aged 27 years, with the intention to outrage the modesty of the minor victim girl and satisfy his lust by seeing her nude photos and videos, had regularly contacted her over mobile phone from 1.1.2021 to 31.1.2021 and that the minor victim girl had sent her nude photos and videos to the accused, which he had transmitted through social media. Crime has been registered by the Station House Officer (SHO), Ramapuram Police Station on 27.9.2021 on the basis of the First BA 5157/22 - : 2 :- Information Statement given by the 16 year old minor victim girl. 3. The specific plea of the applicant accused is that he had gone to Dubai on 4.4.2021 for securing employment there and had secured employment in a company. That it is much after the applicant had gone abroad, that the instant crime has been registered on 27.9.2021. Later on enquiries he could learn that the Police has caused issuance of Look Out Notice (LOC) against him and so, he has apprehension that he will be arrested immediately on arrival at the Airport in Kerala. That the applicant is fully willing to come down from Dubai to Kerala and will fully co-operate with the Police investigation and the due process of court, etc. 4. Heard Sri.C.Dheeraj Rajan, learned counsel appearing for the applicant and Sri.S.U.Nazar. learned Public Prosecutor appearing for the respondent State. 5. The issue as to whether an applicant accused of a nonbailable offence can maintain an anticipatory bail application under Sec. 438(1) of the Cr.P.C. if he is abroad at the time of the filing of the application and other related aspects, were referred for determination by a Division Bench in two Single Bench matters, as per order dated 27.6.2022 in B.A.No.4421/2022 and the order dated 28.6.2022 in BA 5157/22 - : 3 :- B.A.No.4983/2022. Later, when the above matter came up for consideration before the learned Single Judge on 4.7.2022, the pendency of the afore reference cases before the Division Bench was brought to the notice of the learned Single Judge and the learned counsel for the petitioner then submitted that he would also like to address the Division Bench on the questions of law involved therein. Accordingly, the learned Single Judge, as per order dated 4.7.2022 had directed that this case be posed along with B.A.No. 4983/2022 and B.A.No. 4421/2022 for consideration. This case had come up for consideration before the Division Bench on 10.10.2022. The applicant had also moved Crl.M.A.No.1/2022 in the instant B.A.No. 5157/2022 seeking for interim bail pending consideration of the main matters and that the petitioner would immediately come down from Dubai to Kerala and will co-operate with the Police investigation, etc. This Court was then apprised that the interim bail was granted in the two referred cases taking into account the facts and circumstances of those cases. 6. After hearing both sides, this Court passed a detailed order dated 10.10.2022 granting interim bail to the applicant herein in respect of the above crime. The said interim bail order dated BA 5157/22 - : 4 :- ## 10.10.2022 rendered on Crl.M.A.No. 1/2022 in the instant B.A.No. ## 5157/2022 reads as follows: _“This is an application filed by the applicant in the Bail Application with the plea for interim bail as envisaged in Section 438(1) Cr.P.C._ _2. Heard Sri.C.Dheeraj Rajan, learned counsel for the applicant/accused and Sri.S.U.Nazar, learned Public Prosecutor appearing for the respondents._ _3. The matter has come up on reference before us to decide on the correctness or otherwise of the dictum laid down by a learned Single Judge in Vijay Babu v. State of Kerala (2022 (4) KLT 24) which in turn has held that the earlier dictum laid down by another learned Single Judge in Souda Beevi v. S.I.of Police (2011 (4) KLT 52) is not correct. In Souda Beevi v. S.I. Police, it was held by a learned Single Judge of this Court that where an accused is abroad at the time of filing of the anticipatory bail application, he cannot maintain such an application under Section 438 of the Cr.P.C. Now three or four cases have been placed before the Division Bench for an authoritative pronouncement. A Division Bench of this Court while entertaining one such Bail Application, has passed interim order dated 5.7.2022 in B.A.4983/2022 granting interim bail to the applicant/accused, who was abroad at the time of moving anticipatory bail application for the grounds stated therein._ _4. In the instant case, the specific plea of the applicant/accused is that he had gone to Dubai on 4.4.2021, for securing employment there and later he has secured employment in that country. It is much after the applicant/accused had gone abroad that the instant impugned crime No.1097/2021 of Ramapuram Police Station in Kottayam District has been registered on 27.9.2021. Further, the offences alleged against the applicant/accused are under Section 354(A) of the Cr.P.C, Section 67B of the Information Technology Act and Section 12 r/w Section 11 of the Protection of Children from Sexual Offences Act, 2011. Whereas the offences alleged in Bail Application No.4983 of 2022, in which interim bail has been granted, are those punishable under Sections 498A r/w 34 of the IPC. Prima facie after hearing both sides it appears that, the above said factual assertion made by the applicant/accused that he had gone abroad on 4.4.2021 and much thereafter that the crime has been registered on 27.9.2021 is not under serious dispute. It is the admitted case of the prosecution that_ - : 5 :- BA 5157/22 _the investigation has now been duly completed and the Final report and charge-sheet has been filed by the Investigating Agency on 10.11.2021 and the PoCSO Court has taken the cognizance of the case as S.C.No.616 of 2021 on the file of the Additional Sessions Court (PoCSO cases), Kottayam. 5. Having regard to these factual aspects that the applicant cannot be attributed with any mala fide intention of evading the due process of law in going abroad as the applicant had gone abroad much prior to the registration of crime and also taking into account the nature of the offences alleged against the applicant and also more particularly that the investigation has now duly been completed, we feel that the prima facie opinion can be formed only for the limited purpose of consideration of interim bail plea that the petitioner may have gone abroad not for the purpose of any mala fide intention to evade the process of law in as much as the crime registered much after he has gone abroad._ _6. Taking into account the above aspects, we are of the view that the discretion can be exercised for grant of interim bail in favour of the petitioner. Learned counsel for the applicant submits that the applicant will reach Kerala within two weeks._ _7. Sri.S.U.Nazar, the learned Public Prosecutor submits that the mobile phone said to have been used by the accused in his transactions with the minor victim has not been seized so far, as the said mobile phone is still with the applicant/accused. Learned counsel for the applicant submits that the applicant will immediately report before the Investigating Officer on arriving Kerala and would fully cooperate with the Investigation process._ _8. In the above view of the matter it is ordered that the applicant shall surrender before the Investigating Officer on or before 28.10.2022. The petitioner shall there upon subject himself for interrogation before the Investigating Officer and will also surrender the mobile phone. After interrogation, the Investigating Officer will produce the applicant/accused before the jurisdictional PoCSO Court concerned and thereafter, the applicant/accused shall be released by the said Court on interim bail subject to the following conditions :_ _(a) The applicant shall execute a bond for Rs.50,000/- (fifty thousand only) with two solvent sureties each for the like sum both to the satisfaction of the jurisdictional PoCSO Sessions Court concerned._ _(b) The applicant shall appear before the Investigating Officer on all Saturdays at 11.00 am for a period of six weeks and thereafter,_ BA 5157/22 - : 6 :- _he shall appear before the Investigating Officer as and when required in writing to do so._ _(c) The applicant/accused shall fully co-operate with the investigation in case the Investigating Officer wants to conduct a further investigation in terms of Section 173(8)._ _(d) The applicant shall not commit any offence, while on bail. (e) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case, more particularly the victim so as to dissuade such parties from disclosing such facts to the Court or to any police officer._ _(f) On production before the PoCSO Court, the applicant shall surrender his passport before the said Court and he shall not leave the State of Kerala except with the prior permission of this Court as the present Bail Application is now pending before this Court._ _(g) In case, the applicant violates any of these conditions, then the Investigating Officer after necessary enquiry, may file report along with application to cancel the bail and may move application before this Court._ _(h) The above order of interim bail will be in force until further orders and will be subject to the final decision in the Bail Application._ _With the above observations and directions, the above Crl.Miscellaneous Application will stand disposed of.”_ 7. The two above referred cases and certain connected matters including the present one, were heard on the reference issues by the Division Bench on various days. The Division Bench after hearing the learned Advocates appearing for the bail applicants, the learned Prosecutor and the learned amici curiae, had reserved the cases for orders. Thereafter, the Division Bench has now passed final order dated 11.4.2023 in the two referred cases viz., B.A.No. BA 5157/22 - : 7 :- 4421/2022 and B.A.No.4983/2022 and answering the reference issues and also finally disposing of the said two main bail applications. The Division Bench therein has held that, in view of the authoritative pronouncements of the Constitution Bench verdicts of the Apex Court in cases as in _**Gurbaksh Singh Sibbia, Ors. v State of Punjab**_ [(1980) 2 SCC 565], _**Sushila Aggarwal & Ors.**_ _**v. State (NCT of Delhi) & anr.**_ [(2020) 5 SCC 1], etc., and as the right to access justice, forms an inalienable component of Art.21 and Art.14 of the Constitution and as right to travel abroad is also a fundamental right, etc. an anticipatory bail court has jurisdiction under Sec. 438 to entertain a pre- arrest bail plea of an accused who is abroad at the time of filing of the application. The Division Bench further held that the existence or availability of jurisdiction of a court, tribunal or authority is one thing and that exercise of such jurisdiction especially discretionary one is yet another thing. The Division Bench also after placing reliance on various decisions of the Apex Court, etc. has also dealt with some of the cardinal aspects of exercise of discretionary jurisdiction under Sec. 438 of the Cr.P.C. for considering pre-arrest plea of an accused who is abroad at the time of filing of the application and other related issues. BA 5157/22 - : 8 :- 8. The afore two referred cases, B.A.No. 4421/2022 and B.A.No. 4982/2022, were referred by the learned Single Judge to the Division Bench for determination in exercise of the powers under the proviso to Sec. 3 of the Kerala High Court. Whereas in this case, there is no order of reference of the Single Bench as envisaged in the proviso to Sec. 3 of the High Court Act, as this was only directed to be posted along with the afore two referred cases. However, since we have passed interim bail order in this case, the learned Advocates appearing for both sides submitted that the main matter in this case may also be disposed of by the Division Bench. We are of the view that the said proposed course of action is reasonable and proper. Hence we proceed to dispose of the main matter in this bail application. 9. The investigation agency has filed a statement dated 24.1.2023 along with memo dated 30.1.2023 of the Special Government Pleader (Criminal), in this case. The statement would indicate that broad nature of allegations involved in this crime and that after lodging of the FIS and registration of the FIR on 24.9.2021, the minor victim's statement under Sec.164 of Cr.P.C. has also been recorded by the Magistrate concerned. Further that the details of the BA 5157/22 - : 9 :- accused and call data records (CDR) of the phone number were collected from the cyber cell and the address in respect of his mobile phone is shown to be that of the applicant accused herein aged 27 years and that it is admitted in the said statement that the accused was abroad from 4.4.2021. Further that since the accused was abroad, LOC was issued against him on 17.10.2021 through the District Police Chief, Kottayam. Further it is clearly stated that the investigation against the accused is duly completed and the final report by way of charge sheet was submitted to the Ist Addl. Sessions Court, dealing with POCSO Cases, Kottayam, on 10.11.2021. It is also pointed out that since the accused was then abroad, his mobile phone involved in the crime was not seized while submitting the final report/ charge sheet before the special court. The minor victim girl's mobile phone was seized and sent to the Forensic Science Laboratory for examination through the court process. It is thereafter that the present bail application B.A.No.5157/2022 was filed before this Court on 10.10.2022. Further that in pursuance of the interim bail order dated 10.10.2022 granted by this Court to the accused herein, the accused surrendered before the Police and investigating officer arrested him on 27.10.2022 and the medical examination was BA 5157/22 - : 10 :- conducted at Government Hospital, Pala, on 27.10.2022. That his mobile phone was seized by mahazar by the IO and sent to the Court on the same day. The statement of the accused was recorded by the IO and that he was produced before the Special Court concerned on 27.10.2022. The said court had granted bail to the accused in compliance with the interim bail order dated 10.10.2022 passed by this Court in this case. Further it is also stated in the said statement filed by the IO that the accused has complied with all the conditions mentioned in the bail order during the bail period. From the abovesaid conspectus of facts and circumstances it is clear that the accused was indeed abroad since 4.4.2021, well before the registration of this crime. Further it is clearly stated that he is willing to come down from Dubai to Kerala and co-operate with the Police investigation and due process of court and he apprehends arrest in view of the LOC issued against him. 10. Pursuant to the interim bail order dated 10.10.2022, the accused had come down to India and has co-operated with the Police and surrendered before the Police for interrogation and also has now secured bail from the Special Court in compliance with the interim bail order passed by this Court. The investigating agency has stated BA 5157/22 - : 11 :- that the accused has complied with all the conditions. Further the investigation is also completed. Therefore, we are of the view that this is a fit case, where the court could exercise jurisdiction under Sec. 438 of the Cr.P.C. as he cannot be imputed with any intention of absconding from the due process of law, etc. In the light of these aspects, the interim bail order dated 10.10.2022 rendered by this Court in this case is made absolute. It is also ordered that consequential bail order granted by the special court concerned on 27.2.2022 should also be treated as legally valid order for all purposes. 11. The learned counsel for the applicant submitted that it has also been ordered by this Court as per condition No.(f) of para 8 of the interim bail order dated 10.10.2022 rendered by this Court on Crl.M.A.No. 1/2022 in the instant B.A. (see page 5 thereof) that the applicant shall surrender his passport before the special court concerned and he shall not leave the State of Kerala except with the prior permission of this Court, etc. Therefore, sufficient provision has also been made in the above order of this Court that the petitioner will be at liberty to seek permission, if he wants to go abroad. The said condition that he should seek permission of this Court, etc., is slightly BA 5157/22 - : 12 :- modified by ordering that he should seek permission of the Special Court concerned, if he wants to go abroad. In such case, the Special Court will independently consider the plea for permission to go abroad, in the light of the legal principles laid down by this Court in case laws on that issue. No other orders and directions are called for. With these observations and directions, the above bail application will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **C.S.SUDHA, JUDGE** sdk+