P. Haridasan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` WEDNESDAY, THE 18[TH] DAY OF OCTOBER 2023 / 26TH ASWINA, 1945 BAIL APPL. NO. 8040 OF 2023 ``` ## **`CRIME NO.782/2023 OF KOYILANDY POLICE STATION, KOZHIKODE`** ## **`PETITIONER/ACCUSED:`** ``` P.HARIDASAN, AGED 57 YEARS, S/O. KUNHIKANNA KURUP,'GAYATHRI', THACHANKUNNU, KIZHUR, KOZHIKODE DISTRICT, PIN – 673 522. ``` ``` BY ADVS. SANTHARAM.P REKHA ARAVIND P.G.GOKULNATH ``` ## **`RESPONDENT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. ``` ``` 2XXXXXXXXXX XXXXXXXXXX ``` ``` SRI K.A. NOUSHAD (SR PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BAIL APPL. NO. 8040 OF 2023 2 ## ORDER ## This is an application for anticipatory bail. 2. The petitioner is the sole accused in Crime No.782 of 2023 of Koyilandy Police Station, Kozhikode District, alleging commission of offences under Section 354 and 354A(2)of the Indian Penal Code, Section 10 read with Section 9(f) of the Protection of Children from Sexual Offences Act and Section 3(1)(w)(i) and Section 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 [in short ‘the 1989 Act’]. The allegation against the petitioner is that on 28.07.2023 at about 09.00AM, the petitioner sexually abused the minor victim by catching hold of her hands and her abdomen and by kissing her with sexual intent and thereby he committed the aforesaid offences. 3. The learned counsel appearing for the petitioner would submit that the petitioner is retired as a Head Master in an aided school and he joined as the Principal of Universal College in the year 2020 after his retirement. It is submitted that the wife of the petitioner is also a teacher and the petitioner has two daughters. It is submitted that the elder daughter of the BAIL APPL. NO. 8040 OF 2023 3 petitioner has just completed MBBS and is attempting to obtain admission for Post Graduation and his younger daughter is studying for Graduation at a college in Delhi. It is submitted that during the entire career of the petitioner, there has been no allegation of similar nature are raised against the petitioner. It is submitted that the alleged victim had not attended the college for four consecutive dates even though she had left home stating that she was going to college. It is submitted that this fact was informed by the petitioner to the parents of the victim and this was the reason why a false complaint was raised against the petitioner by the victim. It is submitted that considering the nature of the allegations, the petitioner may be granted anticipatory bail subject to conditions. It is also submitted that going by the judgment of this Court in Renoj R.S. v. State of Kerala and Another [2022 (6) KHC 646], even though the offences under the 1989 Act are involved, the petitioner is entitled to maintain this anticipatory bail application before this Court since offences under the POCSO Act are also involved and since no offence under the 1989 Act is prima facie attracted. 4. The learned Public Prosecutor opposes the grant of BAIL APPL. NO. 8040 OF 2023 4 bail. It is submitted that the matter is under investigation. It is submitted that there are clear allegations in the First Information Statement of the victim, which suggests that the petitioner had committed the offences alleged against him. It is submitted that a clear picture will be available only after investigation is completed. It is submitted that since the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 have also been incorporated and pursuant to the orders issued by this Court, a notice of this bail application has been served on the victim / guardian of the victim. 5. Having heard the learned counsel for the petitioner and the learned Public Prosecutor, I am of the opinion that the petitioner can be granted bail subject to conditions. The petitioner is a person who retired from services of an aided school as Head Master. The petitioner has nearly 31 years of service. No allegation of similar nature has been raised against the petitioner and no other criminal antecedents are also reported against the petitioner. The allegations against the petitioner are as stated above. The custodial interrogation of the BAIL APPL. NO. 8040 OF 2023 5 petitioner does not appear to be necessary for the purpose of a proper investigation in to Crime No.782 of 2023 of Koyilandy Police Station, Kozhikode District. Even if on the strength of Renoj R.S. (supra), an anticipatory bail application can be filed before this Court since offences under the POCSO Act are also involved, it would still fall upon this Court to consider whether the provisions of the 1989 Act are prima facie attracted or not, as there is a clear bar in granting anticipatory bail under the provisions of the 1989 Act unless the Court were to come to the conclusion that offences under the 1989 Act are not attracted, prima facie. The offences alleged under the 1989 Act are those under Section 3(1)(w)(i) and Section 3(2)(va) of the 1989 Act. These provisions are attracted only if the offence was committed knowing that the victim was a member of the Scheduled Caste / Scheduled Tribe. A reading of the F.I.S does not even suggest that the offence alleged was committed in such manner. Therefore, prima facie there is no material to suggest that the petitioner had committed any offence under the 1989 Act. 6. Therefore, this application for anticipatory bail is allowed and the petitioner is directed to be released on BAIL APPL. NO. 8040 OF 2023 6 anticipatory bail in the event of his arrest in connection with Crime No.782 of 2023 of Koyilandy Police Station, Kozhikode District, subject to the following conditions:- (i) Petitioner shall execute bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the likesum to the satisfaction of the Arresting officer; (ii) Petitioner shall appear before the investigating officer in Crime No.782 of 2023 of Koyilandy Police Station, Kozhikode District at 11.00 A.M on 21.10.2023 and thereafter, whenever called upon to do so; (iii) The petitioner shall not attempt to contact the victim or interfere with the investigation or to influence or intimidate any witness in Crime No.782 of 2023 of Koyilandy Police Station, Kozhikode District; (iv) The petitioner shall not involve in any other crime while on bail. If any of the aforesaid conditions are violated, the investigating officer in Crime No.782 of 2023 of Koyilandy Police Station, Kozhikode District, may file an application BAIL APPL. NO. 8040 OF 2023 7 before the jurisdictional Court, for cancellation of bail. Sd/GOPINATH P. JUDGE DK BAIL APPL. NO. 8040 OF 2023 8 ## **`APPENDIX OF BAIL APPL. 8040/2023`** ``` PETITIONER ANNEXURES ``` ``` Annexure 1TRUE COPY OF FIR IN CRIME NO.782/23 OF KOYILANDY POLICE STATION Annexure 2TRUE COPY OF THE HIMALAYAN WOOD BADGE DATED 01/03/2002 ISSUED BY DEPUTY DIRECTOR (SCOUTS), LEADER TRAINING Annexure 3TRUE COPY OF THE ORDER DATED 26/08/2023 IN CRIMINAL MC.378/2023 BEFORE THE ADDITIONAL DISTRICT & SESSIONS FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND CHILDREN, KOZHIKODE ```