PONNOOS.K.S v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 8[TH] DAY OF JULY 2022 / 17TH ASHADHA, 1944** **BAIL APPL. NO. 3207 OF 2022** **AGAINST THE ORDER IN BAIL APPLICATION NOS.4609/2021 AND 9046/2021** **OF HIGH COURT OF KERALA. CRIME NO.283/2021 OF PUDUKKAD POLICE** ## **STATION, THRISSUR DISTRICT.** ## **PETITIONER/SOLE ACCUSED:** **PONNOOS.K.S, AGED 48 YEARS, S/O JOHN, MUTTATH HOUSE, ANANDAPURAM DESOM, ANANDAPURA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN – 680733. BY ADVS. T.A.UNNIKRISHNAN K.K.AKHIL** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. 2 XXXXXXXXXX** **BY ADV PUBLIC PROSECUTOR** **PP SMT. SHINYMOL V.O** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **08.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.NO.3207 2022 **2** ## **O R D E R** Petitioner is the sole accused in crime No. 283 of 2021 of Pudukad police station which is registered for the offence punishable under sections 370(4), 376(A), 376(b) 376(2)(n), 376(3) of IPC and Section 6(1) r/w 5(I), (m) and 4(2) r/w 3(a), (b) of the POCSO Act, 2012 and Section 3(1)(w)(i) and 3(2)(v) of the Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. 2. It is alleged that victim is aged 8 years at the time of reporting the crime and belongs to Schedule Caste Velan community and accused is not a member of SC/ST community. The accused alleged to have subjected the victim child to penetrative sexual assault one day during Christmas vacation in 2019 and thereafter on several days upto November 2020 at the house of the accused at Anandapuram while the child used to come to his house for playing and while playing in other places also by taking her inside the room and subjected her to penetrative sexual assault and thereby accused committed the offence afore. 3. Notice was issued to the learned Public Prosecutor. Heard both sides. B.A.NO.3207 2022 **3** 4. It is contended by the learned counsel for the petitioner that the petitioner was arrested on 8-5-2021 and he is in custody since then. It is also contended that his B.A.No.4609/2021 was dismissed by this Court by order dated 11.10.2021 and a direction was issued to the trial court to dispose of the case within a period of six months. Final report in the case was submitted during the pendency of the above bail application. The said bail application was considered by this Court in the light of the report of the DYSP and not on the basis of the final report. In the final report, the allegation is that one day during Christmas vacation in 2019, accused pressed the private parts of the victim and there after till November, 2020 on many days accused committed rape on the girl. While considering the earlier bail application, case was under investigation stage and the allegation of sexual harassment during Christmas vacation is not specific. According to him, accused was not in India from 04.10.2019 to 22.03.2020. Since 22.03.2020, lockdown was declared due to Covid 19 pandemic, there is no chance for the child to come to petitioner's house for playing with the children of the petitioner during the pandemic period. Residential house of the petitioner is an old tiled one. The petitioner is having 4 children and the youngest 2 are twins aged one and half years at B.A.NO.3207 2022 **4** the relevant time. The allegation of harassment is not on a single day. It is improbable to occur any offence as alleged. Those aspects were not considered in the earlier bail application. Hence, he filed B.A.No.9046/2021. Copy of the order dated 23.12.2020 is produced as Annexure-II. 5. According to the learned counsel, more than six months have elapsed. During the period after 22.03.2020, since there is travel restrictions, it is doubtful whether the girl could visit his house during that period. There is six moths delay in lodging the FIR and the alleged incident happened is close to Bus Stop, Main road, Panchayat Road. The prosecutrix referred the accused as Kutoos, but the name of the petitioner is Ponnus John. As per 164 statement, the prosecution alleged that the incident was during the Onam Vacation. The victim was studying in Brotherhood School, Chennai, Tamilnadu. There is no possibility for the victim to visit to Kerala to come to the aunt's house during Onam vacation. Hence, he seeks for granting bail to the petitioner. 6. This is the 3[rd] bail application filed by the petitioner/accused. In _**Kalyan chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr**_ 2005 2 SCC 42=2005 AIR SC 921=2005 KHC 604, dealing with Article B.A.NO.3207 2022 **5** 21 of constitution of India, 1949, it has been held that a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. Paragraph No.18 and 19 are relevant in this context to be quoted, read as; _“18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law.”_ _“19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, but the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been convassed earlier would not be permitted to be re- agitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.”_ B.A.NO.3207 2022 **6** 7. So, even if, there is rule for filing subsequent bail application in cases where all their application have been rejected and that can be done only if there is a change in circumstances. 8. In _**Vineeth v. State of Kerala**_ [2015 5 KHC 224=2016 CriLJ 533], the learned Single Judge of this Court while dealing with pre-arrest bail, it has been held that as a general rule for filing 2[nd] application for anticipatory bail is not bar but however, in the successive application, the applicant should establish change in circumstances sufficient to pursue the court to invoke its extra ordinary justification infavour of him. It has to be established by the applicant in the 2[nd] application that there is a material change in the fact situation which makes him entitle to seek the relief. 9. The earlier B.A.No.4609/2021 was dismissed by this Court as per order dated 11.10.2021. In that bail application, the accused has put forwarded the contention that the victim refers about the sexual harassment during Christmas vacation and subsequent several other occasions. But in 164 statement, victim girl stated about the sexual harassment during Onam vacation when she was studying in the 1[st] standard. From the side of the petitioner, copy of his passport was B.A.NO.3207 2022 **7** produced, to show that, he was not available during the relevant time in India and he was out side India from 04.10.2019 to 22.03.2020. But this Court in that order, it has been found that before 04.10.2019 he was available in India and in 2019 Onam was in the month of September. Evaluating the entire facts and circumstances, this Court dismissed the application. Since there was a submission from the learned counsel for the petitioner that he has been under confinement from 08.05.2021 on wards, a report was called for from additional District and Sessions Court, Thrissur, seeking time for final disposal of the case. As per the reply, a direction was issued to dispose the Sessions case on the file of I Additional District and Sessions Court, Thrissur within six months from the date of receipt of the file in the jurisdictional court. Subsequently, B.A.No.9046/2021 was filed by the petitioner and as per order dated 23.12.2021, that application was also dismissed. 10. So in the present case, the allegation of the petitioner is almost the same in the previous applications. He would contend that more than six months have elapsed from the time fixed for disposal of the case. As per letter dated 07.06.2022, Fast Track Special Court, Irinjalakuda informed this Court that the accused submitted about the pendency of SLP B.A.NO.3207 2022 **8** before the Hon'ble Apex court for bail and to enlarge time limit and on another posting, accused submitted about the fresh bail application before the High Court of Kerala and the learned counsel for the petitioner requested that charge may not be framed until petitions pending before the Supreme Court and High Court of Kerala are disposed of. The learned Sessions Court sought for enlargement of time upto 30.06.2022. Thereafter, when the petition was taken on 16.06.2022 for hearing on framing charge and day-to-day trial is scheduled since the matter could not be disposed of within 30.06.2022, as per letter dated 29.06.2022, the learned Special Judge again sought time for disposal of the case upto 02.08.2022. In that letter, it has been stated that on 16.06.2002 charge was framed and trial was scheduled from 20.06.2022. The counsel for the accused relinquished the vakalat and three days time was granted to engage another counsel and the case was adjourned to 23.06.2022 and on that date, accused sought time to engage another lawyer and the case was adjourned to 25.06.2022. On 25.06.2002, the wife of the accused was present and sought for 15 days time to engage an advocate. Accordingly, fresh Vakalat was filed. So, on going through the letter of the learned Sessions Judge, it appears that adjournment was sought and trial was B.A.NO.3207 2022 **9** protracted due to the fact that the accused was not ready and there was also change in vakalat. So time sought for by the learned Special Judge for disposal of the case upto 02.08.2022 has been allowed. 11. So in the present application, the ground stated by the accused is almost the same. Petition could not establish a change of circumstances so as to entertain the 3[rd] application for bail. While considering earlier bail application, this Court has categorically found that the records produced from the side of the prosecution would reveal the commission of offences of the petitioner on several occasions. The victim has given a statement in the FIS about the sexual assault during Christmas vacation and several other occasion. But in 164 statement, victim girl stated about the sexual harassment during the Onam vacation. Though attempt was made by the petitioner to contend that he was out of station during Onam vacation by producing his passport, his contention was prima facie found to be not sustainable since Onam during year of 2019 was in the year of September and he had been to abroad only on 04.10.2019. 12. The delay in lodging FIR and non mention of any particular date in the FIR or in the final report etc. also has been projected as reason B.A.NO.3207 2022 **10** to disbelief the prosecution to falsify the case of the prosecution. It has been found earlier that medical examination report produced from the side of the respondent prima facie prove the commission of sexual assault. Mahazar witness were residing 5 to 15 km away from the alleged house and the house is situated in the main road near to bus stop where many neighbours are available etc. are matters to be appreciated during the trial by the Special Judge. Hence, on evaluating the facts and circumstances, I am of the view that the petitioner could not establish any change of circumstances so as to entertain the 3[rd] application for bail. In the result, this bail application stands dismissed. Sd/- rps/ ## **M.R.ANITHA, JUDGE**