P. Gopinath v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 BAIL APPL. NO. 9333 OF 2023 ``` ``` CRIME NO.770/2023 OF KUNNAMANGALAM POLICE STATION, KOZHIKODE AGAINST THE ORDER DATED 16-10-2023 IN CRMC 471/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), KOZHIKODE ``` ## **`PETITIONER/ACCUSED:`** ``` P. GOPINATH, AGED 60 YEARS, S/O.LATE M.K. APPUKUTTY VAIDYAR, MECHERI PARAMBATH HOUSE, MALAYAMA P.O., NIT, KOZHIKKODE DISTRICT, PIN – 673 601. ``` ``` BY ADV BABU S. NAIR ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - `1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682 031.` - `2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX` ``` BY ADV. SRI VIPIN NARAYAN (SR PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.11.2023, ALONG WITH Bail Appl..9338/2023, 9340/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.9333 of 2023 & Conn. cases 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 BAIL APPL. NO. 9338 OF 2023 ``` ``` CRIME NO.759/2023 OF KUNNAMANGALAM POLICE STATION, KOZHIKODE AGAINST THE ORDER DATED 16-10-2023 IN CRMC 473/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), KOZHIKODE ``` ## **`PETITIONER/ACCUSED:`** ``` P. GOPINATH, AGED 60 YEARS, S/O.LATE M.K. APPUKUTTY VAIDYAR, MECHERI PARAMBATH HOUSE, MALAYAMA P.O., NIT, KOZHIKKODE DISTRICT, PIN – 673 601. ``` ``` BY ADV BABU S. NAIR ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682 031. 2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV. SRI NOUSHAD K.A. (SR PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.11.2023, ALONG WITH Bail Appl..9333/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.9333 of 2023 & Conn. cases 3 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 BAIL APPL. NO. 9340 OF 2023 ``` ``` CRIME NO.758/2023 OF KUNNAMANGALAM POLICE STATION, KOZHIKODE AGAINST THE ORDER DATED 16-10-2023 IN CRMC 472/2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN), KOZHIKODE ``` ## **`PETITIONER/ACCUSED:`** ``` P. GOPINATH, AGED 60 YEARS, S/O.LATE M.K. APPUKUTTY VAIDYAR, MECHERI PARAMBATH HOUSE, MALAYAMA P.O., N.I.T., KOZHIKKODE DISTRICT, PIN – 673 601. ``` ``` BY ADV BABU S. NAIR ``` ## **`RESPONDENT/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN – 682 031. ``` ``` 2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` BY ADV. SRI NOUSHAD K.A. (SR PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.11.2023, ALONG WITH Bail Appl..9333/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.9333 of 2023 & Conn. cases 4 ---------------------------------------------------------------------------------------------- ## **Bail Appl. Nos. 9333, 9338 and 9340 of 2023** ------------------------------------------------------------------------------------------ ## **ORDER** These are applications for anticipatory bail. 2. Petitioner is common in all these three cases. He is accused in Crime Nos.770/2023, 759/2023 and 758/2023 all of Kunnamangalam Police Station, Kozhikode district. 3. B.A.No.9333/2023 arises from Crime No.770/2023 of Kunnamangalam Police Station, Kozhikode district, which has been registered, alleging commission of offences under Sections 377, 342 & 363 of the Indian Penal Code and Sections 6 r/w 5(l), 8 r/w 7, 12 r/w 11(vi) & 10 r/w 9(l) of the Protection of Children from Sexual Offences Act (POCSO Act). The allegation against the petitioner/accused is that, the petitioner/accused sexually abused the victim aged 17 ½ years after summoning him for some menial job at his house. It is alleged that the petitioner committed a sexual act on the thighs of the victim after applying oil. It is also alleged that oral sex was committed and the boy was forced to hold the genitals of the accused. 4. In B.A.No.9338/2023 arising out of Crime No.759/2023 of Kunnamangalam Police Station, Kozhikode district, which has B.A.Nos.9333 of 2023 & Conn. cases 5 been registered, alleging commission of offences under Section 363 of the Indian Penal Code and Sections 8 r/w 7, 12 r/w 11(vi) of the Protection of Children from Sexual Offences Act (POCSO Act). The allegation against the petitioner/accused is that, the victim boy aged 14 years, used to play shuttle badminton in the badminton court within the premises of the house of the petitioner/accused. It is alleged that, in the month of April, 2023, the petitioner/accused convinced the minor victim that he would be taught English and he was sexually abused on two occasions. 5. In B.A.No.9340/2023, arising out of Crime No.758/2023 of Kunnamangalam Police Station, Kozhikode district, which has been registered, alleging commission of offences under Section 377 of the Indian Penal Code and Sections 4(2) r/w 3(a), 10 r/w 9(l), 12 r/w 11(iii)(vi) of the Protection of Children from Sexual Offences Act (POCSO Act). The allegation against the petitioner/accused is that, the minor victim aged 16 years was subjected to sexual abuse by the petitioner/accused at a time when he was studying in the 11[th] standard. It is alleged that the petitioner had a badminton court adjoining his house and the victim and other children used to play badminton in the said badminton court and the petitioner/accused also used to play B.A.Nos.9333 of 2023 & Conn. cases 6 along with them. It is alleged that in the last week of May, 2023, the petitioner/accused asked the minor victim to stay back under the guise that he would be taught English. It is alleged that thereafter some obscene videos were shown to the boy and after taking him to a room in the upstairs of the house of the accused, the victim was undressed and oral sex was committed on the boy and the boy was also made to catch hold of the genitals of the accused. It is alleged that the victim was sexually abused on another occasion as well. 6. Learned counsel for the petitioner in these cases would submit that the petitioner is a homeo doctor, who retired from Government service. It is submitted that the petitioner retired from service as the District Medical Superintendent (Homeo). It is submitted that the petitioner is an active social worker and owes allegiance to a political party opposed to the political party now in power in the State. It is submitted that recently the petitioner had hosted a party for certain persons who had left the political party which is in power in the State and had joined the party to which the petitioner owes allegiance. It is submitted that thereafter false cases have been registered against the petitioner making allegations as above. It is submitted that having regard to the allegations leading to B.A.Nos.9333 of 2023 & Conn. cases 7 registration of Crime No.770/2023, there is a delay of almost one year, while in the other two cases also there is considerable delay (of few months) in registering the FIS. It is submitted that the petitioner has two grown up daughters of marriagable age. It is submitted that the wife of the petitioner is a teacher and the elder daughter of the petitioner has completed her masters in medicine and her marriage is about to be fixed. It is submitted that the younger daughter of the petitioner is a final year MBBS student. It is submitted that the family of the petitioner enjoys considerable reputation in the locality and if the petitioner is arrested and detained in connection with the crimes now registered against him and upon the allegations now raised against him, the petitioner and his family will be put to serious prejudice and hardship. 7. Learned Senior Public Prosecutor opposes the grant of bail. It is submitted that the allegations against the petitioner are extremely serious. It is submitted that the suggestion now made by the learned counsel for the petitioner that the allegations are raised on account of political rivalry is absolutely preposterous and cannot be accepted. It is submitted that there are clear allegations in the First Information Statement leading to registration of each of the crimes registered against him which B.A.Nos.9333 of 2023 & Conn. cases 8 would attract the offences alleged against the petitioner. It is submitted that in Crime Nos.770/2023 and 758/2023 there are allegations of aggravated penetrative sexual assault and Section 377 of the Indian Penal Code and therefore the petitioner cannot be granted bail, as the custody of the petitioner may be necessary for completing the investigation into the crimes registered against him. He also submits that the petitioner is also accused in Crime No.25/2019 of Areacode Police Station, alleging commission of offence punishable under Section 354 of IPC. 8. Learned counsel for the petitioner, in reply, would submit that the Crime No.25/2019 of Areacode Police Station was quashed by this Court. He submits that the petitioner will co-operate with the investigation in every manner and considering the nature of the allegations, the custodial interrogation of the petitioner may not be necessary. It is submitted that the petitioner is clearly being harassed, as after this Court had granted interim order protecting the petitioner from arrest, the investigating officer has taken away the car of the petitioner, stating that it was necessary for the purposes of investigation. It is submitted that a reading of the First Information Statement in each of the cases will show that there is B.A.Nos.9333 of 2023 & Conn. cases 9 no allegation that any offence was committed using the car belonging to the petitioner and this one fact is enough to show that the petitioner is being harassed in the name of conducting investigation. 9. Learned Senior Public Prosecutor submits that the vehicle was taken into custody as a further statement recorded from one of the victims indicated that offences were committed after taking the victim to several places in the car belonging to the petitioner. 10. Having heard the learned counsel for the petitioner and the learned Senior Public Prosecutor, I am of the view that the petitioner can be granted bail subject to conditions. The petitioner is a retired Government servant. He is aged 60 years. It is unlikely that the petitioner will abscond. If the co-operation of the petitioner can be ensured with the investigation into the cases registered against him, there is no reason as to why anticipatory bail should be refused to him. The Supreme Court in ## **Bhadresh Bipinbhai Sheth v. State of Gujarat and another;** **(2016) 1 SCC 152** , has held that the mere fact that the offences alleged are heinous is no ground to hold that anticipatory bail cannot be granted. The decision is also authority for the proposition that no special case is required to be made out for B.A.Nos.9333 of 2023 & Conn. cases 10 grant of anticipatory bail even when heinous offences are involved. Significantly, the Court also observes that arrest at the crime stage leads to many serious consequences not only for the accused but for the entire family of the accused and most people do not make any distinction between arrest and pre-conviction stage or the post-conviction stage. Paragraph No.25.3 of the judgment in **Bhadresh Bipinbhai Sheth (Supra)** reads as follows: **“25.3.** It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a preconviction stage or post-conviction stage”. When it can be ensured that the accused will co-operate with the investigation and he is not likely to abscond, anticipatory bail can be granted with condition to ensure that the petitioner/accused will co-operate with the investigation and will not de-rail the B.A.Nos.9333 of 2023 & Conn. cases 11 investigation in any manner. The offences alleged against the petitioner are no doubt serious. However, if the co-operation of the petitioner can be ensured with the investigation and suitable conditions are imposed to ensure that he does not abscond, there is no ground to deny bail to the petitioner. As already noticed the petitioner is a retired Government servant, aged 60 years and his wife is stated to be a teacher. The elder among his children has completed post graduate course in medicine and her marriage is in the offing and the younger child of the petitioner is a final year MBBS student. The family will be put to great prejudice if bail is denied at crime stage. These circumstances taken cumulatively compel me to hold that the petitioner can be granted anticipatory bail subject to conditions. 11. In the result, these applications are allowed. It is directed that the petitioner shall be released on bail, in the event of arrest in Crime Nos.770/2023, 759/2023 and 758/2023 of Kunnamangalam Police Station, Kozhikode district, subject to the following conditions:- (i) Petitioner shall execute separate bonds in respect of each of the cases registered against him for sums of Rs.50,000/(Rupees fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the arresting officer; B.A.Nos.9333 of 2023 & Conn. cases 12 (ii) Petitioner shall appear before the investigating officer in Crime Nos.770/2023, 759/2023 and 758/2023 of Kunnamangalam Police Station, Kozhikode district at 11.00 AM on 13-11-2023, 14-11-2023 and on 15-11-2023 and thereafter whenever called upon to do so; (iii) Petitioner shall not attempt to contact the victims or interfere with the investigation or to influence or intimidate any witness in Crime Nos.770/2023, 759/2023 and 758/2023 of Kunnamangalam Police Station, Kozhikode district; (iv) The petitioner shall not enter the local limits of Kunnamangalam Police Station, Kozhikode district except for the purpose of complying with any condition imposed in this order, till 31-12-2023; (v) Petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the Investigating officer in Crime Nos.770/2023, 759/2023 and 758/2023 of Kunnamangalam Police Station, Kozhikode district, may file an application before the jurisdictional Court for cancellation of bail. **Sd/GOPINATH P. JUDGE** ats