Prasanna Kumar V and Aswathy G T v. State of Kerala and XXXXXXXXXX

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946 BAIL APPL. NO. 5432 OF 2024 ``` ``` CRIME NO.519/2024 OF SREEKARIYAM POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONERS/ACCUSED:`** |**`1`**|**`PRASANNA KUMAR V,`**| |---|---| ||**`AGED 38 YEARS`**| ||**`S/O M VIJAYAN NAIR, MEPRAM, POWDIKONAM,`**| ||**`THIRUVANANTHAPURAM, PIN - 695587`**| |**`2`**|**`ASWATHY G T,`**| ||**`AGED 31 YEARS`**| ||**`W/O PRASANNA KUMAR V, MEPRAM, PWDIKONAM,`**| ||**`THIRUVANANTHAPURAM, PIN - 695587`**| ||**`BY ADVS.`**| ||**`SRI.SHAHID AZEEZ`**| ||**`SRI.SAMPATH V. TOMS`**| ## **`RESPONDENTS:`** |**`1`**|**`STATE OF KERALA,`**| |---|---| ||**`REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,`**| ||**`PIN - 682031`**| |**`2`**|**`XXXXXXXXXX`**| ||**`XXXXXXXXXX XXXXXXXXXX`**| ||**`BY ADVS.`**| ||**`R2 BY SRI.J.R.PREM NAVAZ`**| ||**`SMT.PREETHA RANI M.S.`**| ||**`SRI.MUHAMMED SWADIQ`**| ||**`R1 BY SR PP SMT SEETHA S`**| ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.5432 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 02[nd] day of August, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused in Crime No.519/2024 of the Sreekariyam Police Station, Thiruvanathapuram, which is registered against them for allegedly committing the offences punishable under Sections 294(b), 323 and 341 of the Indian Penal Code, 1860 and Sections 8, 7, 10, 9(l), 9(m), 21 and 19 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). 3. The essence of the prosecution case is that : in the year 2018, while the defacto complainant/victim was studying in the 5[th] standard, the 1[st] accused with ``` B.A.No.5432 of 2024 ``` ``` 3 ``` an intention to commit sexual assault on the victim, had removed his shorts and touched his private areas. When the defacto complainant attempted to stop the 1[st] accused from sexually assaulting him, he inserted his finger into his mouth and spat on him. Even though the victim reported the incident to the 2[nd] accused, who is the wife of the 1[st] accused she did not inform about the incident to the statutory authorities. Thus, the accused have committed the above offences. 4. Heard; Sri.Shahid Azeed, the learned counsel appearing for the petitioners, Smt.Seetha S, the learned Public Prosecutor and Sri.J.R.Prem Navaz, the learned counsel appearing for the defacto complainant/2[nd] respondent. 5. The learned counsel for the petitioners submitted that the petitioners are absolutely innocent of the accusations leveled against them. The very fact that the alleged incident took place on 01.12.2018, ``` B.A.No.5432 of 2024 ``` ``` 4 ``` and the FIR is registered only on 18.05.2024, proves the falsity and frivolity in the crime. The father of the defacto complainant is a habitual offender and is on enimical terms with the petitioners. It is at the instance of the father of the victim, that the present crime is registered because the petitioners had complained about his public nuisance. The father of the victim has used the victim as a tool to wreak vengeance on the petitioners. The petitioners are law abiding citizens and are living a happy married life. The petitioner’s custodial interrogation is not necessary and no recovery is to be effected. The petitioners are ready to co-operate with the investigation. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioners are granted an order of pre-arrest bail, it would certainly ``` B.A.No.5432 of 2024 ``` ``` 5 ``` hamper the investigation. Hence, the application may be dismissed. 7. The learned counsel appearing for the 2[nd] respondent also opposed the application. He submitted that there are incriminating materials to substantiate that the petitioners have committed the above offences. If the petitioners are granted an order of pre-arrest bail, it would certainly hamper the entire investigation. Hence, the application may be dismissed. 8. On an evaluation of materials on record, it can be deciphered that the alleged incident took place in 2018, while the victim was studying in the 5[th] standard. It is an admitted fact that the victim used to attend the tuition classes conducted by the accused. It is during the said period that the victim was allegedly subjected to sexual assault. Admittedly, the FIR has been registered only on 18.05.2024, that ``` B.A.No.5432 of 2024 ``` ``` 6 ``` is after lapse of six years. The further materials placed also show that the father of the victim is an accused in eight crimes of the very same police station. It is also seen that the 1[st] petitioner is a witness in Crime No.786/2023 registered against the father of the victim. Annexure A3 shows that the 1[st] petitioner had submitted a complaint against the father of the victim before the very same police station on 01.07.2023, alleging that he was threatening the 1[st] petitioner. Annexure A4 also substantiates that the people of the locality have submitted a representation to the Assistant Commissioner on 03.07.2023 complaining about the nuisance caused by the father of the victim. It is subsequent to all these complaints, that the present FIR has been registered on 18.05.2024 alleging that the petitioners have committed sexual assault on the victim. ``` B.A.No.5432 of 2024 ``` ``` 7 ``` 9. In **Bhadres Bipinbhai Sheth v. State of Gujarat and another** [2015 KHC 4579] the Hon'ble Supreme Court has succinctly culled out the principles to grant orders of pre-arrest bail. It is laid down that Courts should be careful and meticulous in evaluating the facts of each case before granting an order of pre-arrest bail. The court should consider whether arresting of an accused would lead to ignominy, humiliation and disgrace to the accused and their family and also if there is any frivolity in the complaint registered against the accused. 10. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially after analysing Annexures A3 and A4 complaints and the crucial aspect that the alleged incident took place in the year 2018, but Annexure A3 FIR is registered only on 18.05.2024, I find there is some frivolity in the ``` 8 ``` ## **`B.A.No.5432 of 2024`** present crime. However, that is a matter to be investigated and ultimately decided at the time of the trial. But, I am convinced that the petitioners have made out valid grounds to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the petitioners are entitled to an order of pre-arrest bail, but subject to the condition that the petitioners co-operate with the Investigating Officer. In the result, the application is allowed subject to the following conditions: i) The petitioners are directed to surrender before the Investigating Officer within 10 days from today. (ii) In the event of the petitioners’ arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) ``` B.A.No.5432 of 2024 ``` ``` 9 ``` with two solvent sureties for the like amount each; (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. (iv) The petitioners shall not directly or indirectly make any inducement or threat to the victim or his witnesses or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passports, they shall file affidavits to the ``` B.A.No.5432 of 2024 ``` ``` 10 ``` effect before the said court within the said period; vi) The petitioners shall not get involved in any other offence while on bail; (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the ``` B.A.No.5432 of 2024 ``` ``` 11 ``` petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal** **v. State (NCT of Delhi) And another** [2020 (1) KHC 663). (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. **C.S.DIAS** **JUDGE** NAB