Noushad K.V. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 6[TH] DAY OF JANUARY 2023 / 16TH POUSHA, 1944 BAIL APPL. NO. 10480 OF 2022** **AGAINST CRIME NO.726 OF 2020 OF BEKKAL POLICE STATION,** ## **KASARAGOD DISTRICT** ## **PETITIONER/ACCUSED:** **NOUSHAD K.V., AGED 33 YEARS, S/O MOIDEENKUNJI KOVVAL VALAPPU, UDUMA PADINJHAR, KASARGODE, PIN – 671319. BY ADVS. P.E.SAJAL AJAS K.S.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY SHO BEKKAL POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 C.N.PRABHAKARAN (SR.P.P)** **THIS BAIL APPLICATION HAVING COME UP FOR FINAL HEARING ON 30.12.2022, THE COURT ON 06.01.2023 DELIVERED THE FOLLOWING:** 2 Bail Appl.No.10480 of 2022 ## **O R D E R** This is an application for bail filed under Section 439 of the Code of Criminal Procedure, 1973. 2. The petitioner is the sole accused in Crime No.726 of 2020 of Bekal Police Station. The crime was registered alleging offences punishable under Section 376(2)(n) and 506 of the Indian Penal Code, 1860. The allegations, based on which the crime was registered, are that the petitioner and a few other persons, during the period from April 2016 to July 2018, had committed rape on the defacto complainant at her house, where she had been residing along with her children and parents-in-law by putting her under threat. 3. When this Bail Application came up for consideration on 23.12.2022, it was adjourned to 30.12.2022 so as to enable the learned Public Prosecutor to get instructions. 4. The learned counsel appearing for the petitioner and the learned Public Prosecutor were heard in detail. 3 Bail Appl.No.10480 of 2022 5. The learned counsel appearing for the petitioner would submit that the petitioner was totally innocent and on the basis of a totally vague allegation, he has been put behind bars. It is pointed out that absolutely no details; even the day on which the alleged incident had taken place, were stated by the defacto complainant before the police. The identity of the petitioner was not divulged with necessary details. On the basis of such vague materials, the learned Sessions Judge denied bail to the petitioner. The learned counsel, highlighting the said aspects, assails the order dated 08.12.2022 of the learned Sessions Judge, Kasaragod, by which the petitioner was denied bail. 6. The learned counsel appearing for the petitioner further would submit that the defacto complainant along with her husband and a few others are accused in Crime No.467 of 2020 of Bekal Police Station, which was registered with the allegation that the defacto complainant therein was abducted and inflicted with serious injuries using dangerous weapons. In that case, the victim herein alone was granted bail by this 4 Bail Appl.No.10480 of 2022 Court; while others are denied bail. The learned counsel would contend that in retaliation of the said case only, the victim herein gave statement before the police implicating the petitioner and a few others, who are actually innocent. 7. The learned Public prosecutor, on the other hand, would submit that about 18 persons perpetrated the heinous crime rape on a housewife and a detailed investigation into the matter, and collection of evidence before release of the petitioner on bail, is absolutely necessary. It is further submitted that considering the gravity and expanse of the alleged offence, a special investigation team has been constituted, and considering the fact that the investigation is in its initial stages, it is not conducive to release the petitioner on bail at this stage. The learned Public Prosecutor made available for the perusal of the court a report of the investigating officer appended with the copies of necessary records in the case diary. 8. The crime was registered on 17.10.2020. The petitioner was arrested on 19.11.2022. He has been in judicial 5 Bail Appl.No.10480 of 2022 custody since the said date. The victim gave a statement before the police initially implicating five persons. The allegations were that one Riyas, her fiance before her marriage, established contact over phone with her while she was residing in her marital home, where her children and parents-in-law besides her husband and others were there, and threatened that he was in possession of her nude photos. It is alleged that under such blackmail and threat, he prevailed over her will and he lavished her reaching that house during wee hours of a day in 2016. The further allegation is that exploiting her precarious situation, several other persons, including the petitioner reached her house and raped her. There is also an allegation that narcotic drugs were administered on her for facilitating their illegal acts. Unbearable with such torture and tormentation, and on the intervention of her husband, she went to police and made the complaint. Going by her statement, the Station House Officer, Bekal Police Station, was hesitant to record her statement about the complicity of all the 18 persons. It was therefore 6 Bail Appl.No.10480 of 2022 she could state in a subsequent statement only the details of more persons, who lavished her. Accordingly, Crime No.726 of 2020 against the petitioner was also registered. 9. It is true that there is no detailed description regarding the alleged crime committed by the petitioner in the F.I.R. But the statement of the victim contained the necessary details constituting commission of the alleged offence by the petitioner. Narration in the statement of the victim, if true; reveals a planned and organised series of crime involving forcible sexual exploitation of a married woman living along with her children and relatives. Allegation against the petitioner involved only a single incident. But, 18 persons, who formed into a chain, did the repeated offence of rape on the victim lady. That makes the offence grave and bringing it under the penal provision of Second 376(2)(n) of the I.P.C. 10. In **Ash Mohammad v. Shiv Raj Singh @ Lalla Bahu and another [(2012) 9 SCC 446]** , the Apex Court reminded the courts about the parameters requiring consideration while deciding bail applications, in the following 7 Bail Appl.No.10480 of 2022 ## words: “the period of custody has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents of the accused, if any. Further, the circumstances which may justify the grant of bail are to be considered in the larger context of the societal concern involved in releasing an accused, in juxtaposition to individual liberty of the accused seeking bail.” 11. A three-Judge Bench of the Apex Court in **Brijmani** ## **Devi v. Pappu Kumar and another [(2022) 4 SCC 497]** ## held, as follows: “While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of the crime, the 8 Bail Appl.No.10480 of 2022 criminal antecedents of the accused if any, and the nature of punishment that would follow a conviction visa-vis the offence/s alleged against an accused.” 12. Here is a case where the petitioner alone is an accused in this particular crime, but this case arose as one among a batch of cases. In all such cases, the victim is the same woman and each such incident has nexus to the other. Therefore the nature and gravity of the offence is such that the larger societal interest is very much at stake. If the allegation levelled against the petitioner and the accused in the connected cases are true, the incidents certainly have the effect of ruining the social and moral fabric of the society and are required to be dealt with strictly. There is no doubt that this is a crime to be investigated into by a competent special investigation team to bring out the whole truth. 13. In **Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another [(2004) 7 SCC 528]** the Apex Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the 9 Bail Appl.No.10480 of 2022 merits of the case, the court is required to indicate the prima facie reasons justifying the grant of bail. 14. In **Prahlad Singh Bhati v. NCT of Delhi and others [(2001) 4 SCC 280]** the Apex Court highlighted the aspects which are to be considered by a court while dealing with an application seeking bail. It was held: “The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.” 10 Bail Appl.No.10480 of 2022 15. In the light of the law laid down in the aforesaid decisions, this Court is not expected to have a roving enquiry into the matter while deciding this application for bail. It is true that the petitioner has been in judicial custody since 19.11.2022. The alleged incidents occurred during the period from 2016 to 2018. But the crime was registered only in the year 2020. The circumstances under which the victim was placed are indicative that the delay in initiating the prosecution is prima facie justified. When a victim of a sexual offence states before the authorities that she was sexually abused by a particular individual, it is absolutely obligatory on the part of the authorities to take it on its face value and enquire into the matter. The victim here had given a statement before not only the police, but also the Magistrate under Section 164 of the Cr.P.C. reiterating the same allegations. In such circumstances, it cannot be said that the prima facie materials for establishing the complicity of the petitioner with the offence are lacking. Obviously the investigation in the matter is in the initial stages only. I am 11 Bail Appl.No.10480 of 2022 not forgetting the fact that there is a case pending investigation where the victim, husband and others are accused, which has some nexus with the allegation of rape levelled against the petitioner and others. Those are matters to be investigated upon. It is too premature a stage to release the petitioner on bail, for the reason of such a crime. In such circumstances, I am of the view that the petitioner is not entitled to be released on bail at this stage. Accordingly, this Bail Application is dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr