PRADEEP KUMAR v. STATE OF KERALA and connected matters (Bail Applications No. 8031/2017, 6308/2017; Crl.M.C. Nos. 6152/2017, 6178/2017, 6179/2017)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939** **Bail Appl..No. 8031 of 2017 () ------------------------------AGAINST THE ORDER/JUDGMENT IN Bail Appl. 4719/2017 of HIGH COURT OF KERALA DATED 07-07-2017 AGAINST THE ORDER/JUDGMENT IN CRMP 1484/2017 of SPECIAL COURT UNDER POCSO ACT, PALAKKAD DATED 14-06-2017 CRIME NO. 43/2017 OF CBCID, PALAKKAD , PALAKKAD** **PETITIONER(S)/ACCUSED NO.2:** **--------------------------** **PRADEEP KUMAR AGED 31 YEARS S/O.MURALEEDHARAN NAIR,, KADAPPALLIL HOUSE, NAGAM KULANGARA, WAYALAR EAST VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT.** **BY ADV. SRI.R.RANJITH (MANJERI)** **RESPONDENT(S)/STATE & COMPLAINANT:** **----------------------------------** **1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **2. THE SUB INSPECTOR OF POLICE** **WALAYAR POLICE STATION, PALAKKAD DISTRICT-678624.** **R BY PUBLIC PROSECUTOR:SMT REKHA C NAIR** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15-11-2017, ALONG WITH BA. 6308/2017, CRMC. 6152/2017, CRMC. 6178/2017, CRMC. 6179/2017, THE COURT ON 23.11.2017 PASSED THE FOLLOWING:** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **B.A. No.8031 & 6308 of 2017 and Crl.M.C.Nos. 6152,6178 & 6179 of 2017** - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of November, 2017 ## **O R D E R** These matters arise from Crime Nos.240/2017 and 43/2017, both of Walayar police station for offences punishable under sections 354,376(i)(n), 305 of IPC, Sections 5(1) read with section 6,7 and 8 of POCSO Act 2012 and sections 3(2)(v), 3 (1) (w) of SC/ST (Prevention of Atrocities) Act. 2. The crux of the prosecution allegation in Crime No.43/2017 is that, a 13 year old girl was sexually abused by four accused continuously over a long period. This drove her to commit suicide on 13/1/2017. Four persons were arrayed as accused and crime was registered. After investigation, final report was laid and the matter is pending as SC No.396/2017 of the Sessions Court, Palakkad. 3. In Crime No. 240/2017, the allegation is that, 9 year 2 BA No.8031/2017 & others old sister of the victim involved in Crime No. 43/2017 was subjected to sexual abuse by three persons, including a juvenile in conflict with law. Two of the accused in Crime No.43/2017 are the accused in Crime No. 240/2017. The girl committed suicide on 14/4/2017. Accordingly, crime was registered and after investigation, final report was laid against the first accused as SC No. 400/2017 and against the second accused as SC No. 401/2017. The juvenile in conflict with law is being dealt with in accordance with the provisions of the Juvenile Justice Act. It also appears that, both the victims were abused by the accused who were closely associated with the family of the victims, exploiting the poverty and the adverse family circumstances of the victims involved. 4. Thereafter, successive bail applications were filed by all the accused which were consistently rejected by the Sessions Court and by this Court, specifically referring to the serious nature of the allegation and that two children, who were sisters, were sexually exploited, ultimately driving them to commit suicide. In B.A.No.5443/2017, by order dated 11/8/2017, this Court had directed the expeditious trial by the trial court. 5. B.A.No.6308/2017 is filed by the 4[th] accused in Crime BA No.8031/2017 & others 3 No. 43/2017 contending that,the prime accused were granted bail by the Sessions Court, that the 4[th] accused is involved only in one case and that the allegation under section 376 IPC is not specifically made out against him. B.A.No.8031/2017 is filed by the second accused in Crime No.43/2017 on a premise that he was granted bail in the connected matter by the Sessions Court and sought bail in this case also. 6. Crl.M.Cs are filed by the State challenging the orders in Crl.M.P.No.2098/2017 in S.C No. 401/2017, Crl.M.P.No.2120/2017 in S.C No. 400/2017 and Cr.M.P.No.2120/2017 in S.C No. 396/2017 dated 11/8/2017 by which one Madhu @ Valiya Madhu, who is the common accused in two crimes, was granted bail by the Sessions Court in both the cases and bail was granted to one Pradeepkumar in Crime No.240/2017. In fact, Pradeepkumar has moved BA No. 8031/2017 seeking bail in Crime No. 43/2017. 7. Since all the petitions arise from the connected matters and the records being similar, cases were heard together and are disposed of by this court . Learned counsel for the petitioners in the bail applications sought bail, which was vehemently opposed by the learned Public Prosecutor . In BA No.8031/2017 & others 4 Crl.M.Cs, learned Public Prosecutor vehemently contended that the learned Sessions Judge has, without proper application of mind, granted bail to the accused involved in three crimes without considering the seriousness of the allegation, that this court had refused bail to all the accused and that this court had passed an order directing the Sessions Court to try the case expeditiously. It was also submitted by the learned Public Prosecutor that the records revealed that even though the bail was granted to the above accused on 11/8/2017, bond was executed by the accused four days after granting the bail, fully conscious of the direction of this Court for expeditious trial. 8. It is seen that, bail applications were considered by the Court below and allowed on the only reason that the final report was filed. It appears that, Pradeep Kumar had filed the bail application on 10/8/2017 which was allowed on the next day i.e.11/8/2017, by order in Crl.M.P.No. 2098/2017. Bail Application of Valiya Madhu was filed on 11/8/2017 and bail was granted on the same day, by order in Crl.M.P.No.2120/2017. It emerges from the record that Valiya Madhu was brought to the court on that day and he filed bail application directly, which was considered and was granted. BA No.8031/2017 & others 5 9.Opposing the application for cancellation of bail, learned counsel for the accused vehemently contended that, bail can be cancelled only when there is proof that accused had misused or abused the freedom given during the bail as held by this court in **Asha Babu v. Jain Paul (2013 (3) KLT SN 73).** It was held by the Supreme Court in **Abdul Basit v. Md.Abdul Kadir Chaudhary ( 2014 (4) KLT SN 87** ) that the order granting the bail can be set aside only on the grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court. 10. Pursuant to the rival contentions, a detailed report was called from the court below regarding the facts leading to the granting of the bail. A report dated 17/10/2017 was received. In the report, the learned Sessions Judge has stated that on 11/8/2017, when the accused Valiya Madhu was produced in open court, he directly filed the bail applicationCMP No.2120/2017. The learned Public Prosecutor, submitted that the charge sheet has been filed and that Valiya Madhu was in custody for more than 90 days. According to the learned Sessions Judge, on a premise that the prosecutor did not make objection to the granting of the bail, that the BA No.8031/2017 & others 6 charge had been filed and that the accused was in custody for more than 90 days, bail was granted to him. The learned Sessions Judge has further stated that, though on 10/8/2017 Pradeep Kumar had filed CMP No.2098/2017 in SC No.401/2017 seeking bail, and notice was served, when the case was called on 11/8/2017, the learned Prosecutor was absent and was not represented. It was further stated that, the Special Prosecutor for POCSO though present, did not represent. Hence, the bail was granted. It was reiterated that, the court granted bail without noting that it was a sensational matter and the court came to know about this only after granting bail. The reply showed that in one paragraph, he had stated that the the special prosecutor had submitted that charge sheet had been filed and in the next paragraph, it was stated that the special prosecutor was absent. Noting the apparent contradiction in the reply, the learned Session Judge was directed to give a clarification. By reply dated 3/11/2017, it was informed that when the bail application submitted by accused Pradeepkumar as Crl.M.P.No.2098/2017 in SC No.401/2017 was taken up, there was no representation from the side of the prosecutor, though she was present before the court. Since nothing was heard from the side of the BA No.8031/2017 & others 7 prosecution objecting the bail plea, the bail was granted accidentally, oblivious of the severity of the prosecution . The learned Session Judge has further stated that, he was simply carried away by the silence from the side of the prosecution and failed to be reminded himself about the seriousness of the crime alleged. It was also stated that, the mentioning in the reply dated 17/10/2017 that the learned Public Prosecutor was absent when Crl.M.P.No.2098/2017 came up for hearing, was a mistake and was a slip on his part. 11. The above replies eloquently speak by itself. Regarding the case of Valiya Madhu who was involved in two cases, the bail application was allowed on the same day of handing over the bail application in the open court, on a premise that the learned Public Prosecutor did not make any representation. The learned Sessions Judge has admitted that he did not notice the severity of the accusation involved and that the matter was a sensational matter. These facts clearly show that there was total non application of mind, while considering the bail application. Evidently, bail was granted without having due regard to the question whether the accused was entitled for bail at all. Definitely, it could have been a different situation, if the learned Sessions Judge BA No.8031/2017 & others 8 has appreciated the entire facts and for reasons to be recorded, concluded that there was a change of circumstance warranting granting of bail. Definitely this court would have appreciated such an attitude. Here in this case bail was granted casually, without application of mind and disregarding the principles governing granting of bail. It is clear that, two accused who were accused of having sexually abused two minor girls and drove them to commit suicide were granted bail. The order granting bail hence cannot be justified even for a moment. Hence, I am inclined to set aside both the orders granting the bail and to allow Crl.M.Cs. Accordingly . 12. Regarding the bail application submitted by the second accused in SC No.400/2017, he is the very same person who was granted bail by the order of the Session Court in Crl.M.P.No.2098/2017 in SC 401/2017.. In the light of the findings mentioned above and the gravity of the offence alleged against him, he is not entitled for bail. Accordingly, B.A.No.8031/2017 is liable to be dismissed. 13. In B.A.No.6308/2017, the petitioner herein is the 4[th] accused who stands on a totally different footing. He is in custody since 17/2/2017. However, unlike the other accused, BA No.8031/2017 & others 9 he is involved in Crime No.43/2017 only. Further, there is no specific allegation of penetrative sex attributed to him. Learned Counsel for the petitioner contended that even the facts alleged only shows that the petitioner herein can at the most be held for sexual assault. 14. Having considered the above facts and the fact that the petitioner in BA NO.6308/2017 stands on a different footing from the other accused, I am inclined to grant bail to him at this length of time. 15. In the result, Crl.M.C.Nos.6152/2017, 6178/2017 & 6179/2017 stand allowed setting aside the order in Crl.M.P.No.2098 of 2017 in SC No.401 of 2017, Crl.M.P.No.2120 of 2017 in SC No.396 of 2017 and Crl.M.P.No.2120 of 2017 in SC No.400/2017. Bail granted to the accused in the above case stands cancelled. 16. B.A.No.8031/2017 stands dismissed. ` 17. B.A.No.6308/2017 stand allowed granting bail to the 4[th] accused in SC No. 399/2017 on the following conditions: i). Petitioner in BA No.6308/2017 shall execute a bond for a sum of Rs.75,000/- (Rupees Seventy Five Thousand only) with two sureties for the like sum each to the satisfaction of the BA No.8031/2017 & others 10 jurisdictional court. ii), The petitioner shall not threaten, coerce or intimidate the defacto complainant and the witnesses nor shall be interfere in the process of investigation. Iii). He shall appear before the court below as and when called for. Sd/- **SUNIL THOMAS Judge** dpk True Copy/ P S to Judge