Noufal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA, 1941** **BAIL APPL.NO.711 OF 2020** **CRIME NO.239/2018 OF VALAYAM POLICE STATION, KOZHIKODE** ## **APPLICANT/3RD ACCUSED:** **NOUFAL, AGED 34 YEARS S/O.POKER, ACHANKANDIYIL, PURAMERI, MUTHUVADATHUR, KOZHIKODE DISTRICT, PIN-673503.** **BY ADVS. SRI.M.REVIKRISHNAN, SRI.SHARAN SHAHIER** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.02.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. --------------------------------------B.A. No. 711 of 2020 --------------------------------------Dated this the 25[th] day of February, 2020 ## O R D E R The petitioner herein has now been arrayed as the 3[rd] accused in the instant Crime No.239/2018 of Valayam Police Station, Kozhikode district and he seeks grant of anticipatory bail in respect of his involvement in the said crime. The offences registered in the said crime are those punishable under Secs.354, 370A, 511 of 376 of the IPC, Secs.7,8,10,17 & 9l of the Protection of Children from Sexual Offence Act, 2012 and Sec.75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The name of the petitioner herein is Noufal, who is stated to be residing at Purameri, Muthuvadathur, Kozhikode district. The abovesaid crime has been registered on the basis of the FIS given by the minor victim girl on 9.9.2018. Initially the crime was registered in Nadapuram Police Station, Kozhikode district, and since the major part of the incidents narrated in the FIS had happened in the territorial limits of Valayam Police Station, the crime has been transferred from Nadapuram Police Station to Valayam Police Station, and in the latter Police Station the case has B.A. No. 711 of 2020 **==> picture [19 x 9] intentionally omitted <==** been now been re-registered as aforementioned Crime No.239/2018 for the very same offences. 2. The prosecution case in short is that, about 5 months prior to the submission of FIS on 9.9.2018, i.e. accused Nos.2 to 5 with the consent and collusion of A1 (mother of the minor victim girl) had taken the minor victim girl from her house at Pudukayam to hired house at Kondotty and then taken her to various places at Gudallur, Coimbatore, Wayanad etc and sexually abused her at various hotel rooms etc at the behest of other male accused persons concerned. Initially, the allegations raised by the minor victim girl in her FIS was to the effect that, one Noufal of Kallachi has also abused her on 2 occasions and no allegation of penetrative sexual assault was raised as against the said Noufal of Kallachi. The police on the basis of investigation had then taken the stand that Noufal, S/o.Kunhabdulla, residing at Edachery, Vadakara, Kozhikode district, is the Noufal narrated by the minor victim girl in her FIS. Later the police after investigation had taken up the stand based on the statement given by the minor victim girl and her sister that the said Noufal is not the person who has been B.A. No. 711 of 2020 ..4.. arrayed as accused. Based on the said stand taken by the investigating agency this Court as per Anx.B order dated 16.7.2019 in B.A. No. 4267/2019 & Crl.M.C. No. 8828/2018 had granted anticipatory bail in favour of the said Noufal. The police after investigation has now deleted the said Noufal from the accused array in Anx.B proceedings. Later based on subsequent Sec.161 Cr.P.C. Statement given by the minor victim girl on 14.9.2019, the petitioner herein who is also having the same name Noufal, has been implicated as accused No.3 in the instant crime. 3. The counsel for the petitioner would point out that the abovesaid allegations raised in this petition are false and baseless, and further that as per the initial version there are great divergences in the case of the prosecution, and that even going by the allegations raised by the minor victim girl, her case is that the petitioner herein had physically touched and had also touched her breast and when her sister intervened, he had stopped it, etc. Further that, the initial allegations was that the victim girl was taken to places like Gudallur, Coimbatore, Wayanad etc wherein the said Noufal of Kallachi had sexually assaulted her by touching her, etc. B.A. No. 711 of 2020 ..5.. Now, as per the new version given on 14.9.2019 the case of the minor victim girl is that, she was taken to Wayanad by the petitioner herein, where he had committed the abovesaid acts, etc and that in respect of the alleged incidents said to have happened in April, 2018, allegations are raised against the petitioner for the first time only as late as on 14.9.2019, and that there is long and unexplained delay in implicating the petitioner. It is also pointed out that the new version of the minor victim girl is that she could identify the petitioner herein, on the basis of his pictures which had appeared in the Facebook Account of her father, and that such a person was never made by the victim girl in her original FIS as against Noufal of Kallachi. Accordingly, it is urged that this Court may grant anticipatory bail to the petitioner subject to any stringent condition that the petitioner would fully co-operate with the investigating agency, etc. 4. Sri.Saigi Jacob Palatty, learned Prosecutor would strongly oppose the plea for anticipatory bail and has pointed out that the petitioner has not so far co-operated with the investigating agency in the investigation process, and has also pointed out that B.A. No. 711 of 2020 ..6.. there is strong possibility of the petitioner intimidating or influencing the witnesses, if he is let out on bail. 5. After hearing both sides and after careful evaluation of the facts and circumstances of the case, it is seen that the initial allegations are raised as against a person called Noufal of Kallachi based on the FIS given by the minor victim girl on 9.9.2018 in respect of the alleged incidents which has happened in April, 2018. Later based on the statement given by the minor victim girl and her sister, the police had deleted the said Noufal from the accused array and now based on the new statement given by the minor victim girl on 14.9.2019, the stand of the police is that it is the present petitioner who is the accused named as Noufal in the allegations of the minor victim girl, etc. Moreover, the main allegations to the effect that the petitioner had touched her body and chest, and when her sister had intervened, he was forced to stop it. There are no allegations of penetrative sexual assault raised against the petitioner. There appears to be unexplained delay on the part of the prosecution in implicating the petitioner on the basis of the new statement given by the minor victim girl on B.A. No. 711 of 2020 ..7.. 14.9.2019, and that too in respect of the alleged incidents happened in April, 2018. 6. Going by the nature of the allegations as well as the attendant facts and circumstances, this Court is of the considered view that the petitioner has made out a strong probable case, that his custodial interrogation may not be necessary or imperative for effectuating smooth and effective conduct of investigation in this crime. However, taking note of the abovesaid apprehension raised by the prosecution that there is strong possibility of the petitioner intimidating or influencing the witnesses more particularly the minor victim girl and her sister, etc, it is ordered as a safeguard that the petitioner shall not enter into or reside any within the territorial limits of the Police station, where the minor victim girl is residing or studying until the conclusion of the trial process, subject to certain exceptions which will be dealt with hereinafter. However, as rightly pointed out by the Prosecutor, the petitioner will have to immediately appear before the Investigating Officer, and fully co-operate with the interrogation process, and the petitioner will have to surrender his Passport before the Special B.A. No. 711 of 2020 ..8.. ## Court concerned without any further delay. 7. Accordingly, the following directions and orders are ## passed: - _i. The petitioner will immediately personally appear before the Investigating Officer (I.O.) in Crime No.239/2018 of Valayam Police Station for interrogation purposes at any rate by 9 am on any day on or before 10.3.2020 or within such time limit that may be extended by the I.O. as he deems fit and proper._ - _ii. The petitioner will fully co-operate with the Investigating Officer in the conduct of the above interrogation process._ - _iii. After the interrogation process is over, in case the Investigating Officer arrests the petitioner in relation to the abovesaid crime, then he shall be released on bail on executing bond for Rs.40,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the Investigating Officer concerned._ ## 8. Further it is also ordered that the grant of bail will be subject to following conditions:- - _i. The petitioner shall report before the Investigating Officer concerned in relation to this case at any time between 9 am and 1 pm on all 2[nd] & 4[th] Saturdays for the next 6 months, and thereafter the petitioner will appear before the Investigating Officer, as and when directed by him._ - _ii. The petitioner shall not involve in any criminal offences of similar nature._ - _iii. The petitioner shall fully co-operate with the investigation._ B.A. No. 711 of 2020 ..9.. - _iv. The petitioner shall not influence witnesses or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _v. The petitioner shall not go or visit anywhere near the residence or educational institute of the minor victim girl until the conclusion of trial._ - _vi. The petitioner shall not enter into or reside within the territorial limits of the Police Station where the minor victim girl is residing or studying until the conclusion of trial process, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyer/advocate concerned._ - _vii. However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ - _viii. The Investigating Officer will ensure that a Police Constable preferably a Woman Police Constable is deputed to the residence of the minor victim girl once in six weeks, to ascertain whether she or her family members are subjected to any intimidation or influence by the petitioner or men at his instance. If anything adverse is brought to the notice of the Investigating Officer, then he may immediately file appropriate report along with application seeking cancellation of bail granted to the petitioner hereby, before the Special Court concerned dealing with POCSO Cases. Upon which, he said Court will stand authorised to consider the said plea and pass orders in accordance with law after hearing the petitioner's counsel as well as the learned Prosecutor._ B.A. No. 711 of 2020 ..10.. If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. With these observations and directions, the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG