R. Sreeram Sharma @ Adhithya Swaroopananda and Vishnu P.M. vs State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941** ## **Bail Appl..No.3806 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMC 643/2019 DATED 02-05-2019 OF ADDITIONAL DISTRICT COURT, THRISSUR** **CRIME NO.196/2019 OF Town West Police Station , Thrissur** ## **PETITIONERS:** **1 R.SREERAM SHARMA @ ADHITHYA SWAROOPANANDA AGED 54 YEARS SHIVASHRAMAM, SANKARAYYA ROAD, POOTHOLE, THRISSUR DISTRICT.** **2 VISHNU P.M @ BRAHMACHARI VISHNU CHAITHANYA AGED 30 YEARS SHIVASHRAMAM, SANKARAYYA ROAD, POOTHOLE, THRISSUR DISTRICT.** **BY ADVS. SRI.N.K.UNNIKRISHNAN SRI.N.U.HARIKRISHNA** ## **RESPONDENT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.(CRIME NO.196/2019 OF THRISSUR WEST POLICE STATION,THRISSUR DISTRICT)** **2 STATION HOUSE OFFICER, THRISSUR WEST POLICE STATION, THRISSUR DISTRICT, (CRIME NO.196/2019 OF THRISSUR WEST POLICE STATION, THRISSUR DISTRICT) 680001.** **3 MURUKAN SOUGHT TO BE IMPLEADED** ## **R3 BY ADV. D.ANIL KUMAR** ## **OTHER PRESENT:** **SRI.S.SAJJU, PUBLIC PROSECUTOR, SRI.D.ANIL KUMAR FOR THE DEFACTO COMPLAINANT** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.3806 OF 2019** **2** ## **ALEXANDER THOMAS, J.** ## **----------------------------------------B.A. No. 3806 of 2019 ----------------------------------------Dated this the 12[th] day of November, 2019** ## **O R D E R** The petitioners herein has been arrayed as accused Nos.1 and 2 among the 2 accused in the instant Crime No. 196/2019 of Thrissur West Police Station which has been registered for the offences punishable under Secs. 377, 506 r/w 34 of the IPC and Secs. 8, 7, 9f, 9l and 10 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Sec.75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The abovesaid crime has been registered on the basis of the FI statement given by the minor victim boy aged 17 years on 22.02.2019 at about 5.50 pm in respect of the alleged incidents which happened for the period from 10.12.2018 to 01.01.2019. 2. The prosecution case in short is that the parents of the minor victim boy aged 17 years were closely associated with the activities of the Ashramam run by the petitioners. The Ashramam named Shivashramam comes under the Shirdi Sai Baba denomination. Further that, the parents of minor victim boy had gone to Shirdi, they had then made arrangements for the stay of the minor victim boy and his brother in the said Ashramam. During the period from 10.12.2018 to 01.01.2019, the 1[st] petitioner had made sexual advances to the minor victim boy when he was residing in the **Bail Appl..No.3806 OF 2019** **3** said Ashramam on various occasions in the night time by undressing the boy and kissing on his face and cheeks and also by kissing on his genital area and by pressing his genital organ etc. Almost identical allegations are made in the FI statement as against the 2[nd] petitioner (A2) as well. It appears that the Police after investigation has also added the offence as per Secs. 3, 4 and 6 of the POCSO Act. 3. Heard Sri.N.U.Harikrishna, learned Advocate appearing for the petitioners and Sri.S.Sajju, learned Prosecutor appearing for the respondent-State and Sri. D.Anilkumar, learned Advocate appearing for the defacto complainant (minor victim boy). 4. The learned counsel for the petitioners would urge that the entire allegations raised by the defacto complainant are false and are made at the instigation of his parents in their greedy attempt to grab the Ashramam properties by pressurising the petitioners to accede to their interference with the Ashramam Trust, with the help of certain criminal elements like Sanal Sojan etc. The learned Prosecutor and the learned Advocate appearing for the defacto complainant has opposed the plea for anticipatory bail. Sri. N.U.Harikrishna, learned Advocate appearing for the petitioners has urged the following main grounds in support of his plea for grant of anticipatory bail. _(a) That the alleged incidents are said to have happened on various occasions for the period from 10.12.2018 to 01.01.2019 whereas the FIS and the crime has been lodged only as late as on 22.02.2019 and no reasonable explanation has been offered by the prosecution agency to_ **Bail Appl..No.3806 OF 2019** **4** _explain the long delay of more than 52 days in the lodging of the abovesaid case and that the time gap of 52 days is reckoned from the last date of alleged incident._ _(b) None of the allegations in the FIS would make out the offence as per Sec.377 of the IPC. It is pointed out that the allegations in the FIS are mainly to the effect that the accused persons had made the boy undressed and that they used to kiss on his face and cheeks and also on his genital area etc. The learned counsel appearing for the petitioners on the basis of the dictum laid down by this Court in the celebrated case in_ _**State of Kerala v. Kundumkara Govindan** [1968 KLT 485] as well as the decision of the Apex Court in_ _**Navtej Singh Johar & others v. Union of India** [2018 (10) SCC 1] has pointed out that it is now well settled to make an offence as per Sec. 377 of the IPC, there should be necessary allegations to fulfill the ingredients of the enveloping of the visiting organ by the visited organ and that such necessary ingredients could be fulfilled, if there is a case of forcible anal, penetrative sexual assault, placing of the male organ between the thighs of the victim or placing of the organ within the cleavages of the buttocks etc. so as to fulfill the minimum requirement of enveloping of the visiting organ by the visited organ or there should be allegations of oral sex (Fellatio, Cunnilingus etc.) A bare reading of the FIS would make it clear like the day light that none of such allegations are made in the instant FIS and that therefore the none of the vital ingredients of Sec. 377 of the IPC or penetrative sexual assault as envisaged under Secs. 3 and 4 of the POCSO Act are fulfilled in the instant case._ (c) _It is also pointed out by the learned counsel for the petitioner that the specific case of the defacto complainant in the FIS is that the entire incidents have happened in the premises of the Ashramam run by the petitioners, whereas in the present version given by the defacto complainant to the investigating offficer, some of the incidents in_ **Bail Appl..No.3806 OF 2019** **5** _relation to the 2[nd] petitioner have happened in a farm house and a scene mahazar has also been prepared in relation to the farm house, which is not even remotely mentioned anywhere in the FIS. The said divergence in the prosecution case would also cast serious suspicions and doubts about the prosecution case inasmuch as the goal posts have been shifted constantly during the course of investigation by the new versions of the defacto complainant._ _(d) Further that, it is pointed out that the case of the prosecution now is that though the said allegations regarding Sec.377 IPC are not made by the victim boy in the FIS given on 22.02.2019 in respect of the alleged incidents which happened for the period from 10.12.2018 to 01.01.2019, the defacto complainant has subsequently given statement under Sec.161 of the Cr.P.C. wherein he has made allegations about penetrative sexual assault etc. It is urged by the counsel for the petitioner that the abovesaid allegations are made very belatedly even after the submission of the FIS, which itself is highly belated and that the said aspect would make it clear that those allegations are the products of afterthought and fabrication. The complainant had more than 52 days to give the complaint to the Police by way of FIS after the last incident which is said to be happened on 01.01.2019 and even after the lapse of such 52 days, he has never pressed into make any such allegations in the FIS and the subsequent making of such allegations in statements given much later, has to be viewed with great suspicion and caution etc._ _(e) The specific case of the defacto complainant is to the effect that the alleged incidents have taken place for the period from 10.12.2018 to 01.01.2019 and that the victim's parents had made him to stay in the Ashramam as his parents had gone to Shirdi, prior to 10.12.2018. Further, it is pointed out that the investigating officer has now candidly admitted in the statement filed before this Court that the investigation has revealed that the 1[st] petitioner (A1) had gone to Shirdi along with the_ **Bail Appl..No.3806 OF 2019** **6** _parents of the victim boy on 14.12.2018 and that all of them had returned back from Shirdhi to Thrissur only on 19.12.2018 and that the 1[st] petitioner (A1) was not in the Ashramam for the period from 14.12.2018 to 19.12.2018 and the said crucial aspect that the 1[st] petitioner (A1) had gone to Shirdhi with none other than the parents of the complainant was fully suppressed by the complainant in the FIS given as late as on 22.02.2019. In view of the abovesaid indisputable fact regarding the suppression of the abovesaid crucial aspect, there are certainly objective factors now to raise serious suspicion and doubt regarding the credibility and believability of the version of the prosecution case put up by the complainant._ _(f) The main explanation given by the complainant in his FIS about delayed reporting of the case is that the 1[st] petitioner (A1) had threatened him and intimidated him not to divulge the incidents. But that the complainant has admitted in his FIS that the abovesaid Sanal is included in serious cases including at least 4 crime for offences as in Secs.393, 384 etc. and that admittedly, as the complainant's father is very close to such a known criminal as Sri.Sanal, then it defies all common sense and logic as to why and as to how such a family is having such close association with a person like Sanal should be intimidated by the alleged threats of the 1[st] petitioner, who is only a 'swami' and that the said excuse put up by the complainant in the FIS projecting the reason for the delay is not bonafide and there is no proper and reasonable explanation for the long and unexplained delay of 52 days in the lodging of the FIS in the instant case. Further, a mere reading of the FIS would make it clear that the allegations made against both the accused persons are almost identically worded and are in highly vague terms and this would also ordinarily lead to the creation of suspicion and doubts about the very believability and credibility of the prosecution story. Further, it is pointed out that it is the admitted case of the investigating officer that by now the interrogation of the accused persons has been conducted on very_ **Bail Appl..No.3806 OF 2019** **7** _many occasions, particularly that of the 1[st] petitioner (A1) and that in view of the abovesaid crucial aspects, the custodial interrogation of the petitioners is not necessary etc._ 5. Per contra, Sri.S.Sajju, learned Prosecutor would point out that it may be true that some of the crucial aspects involving Sec.377 IPC have not been stated by the complainant, who is a minor boy in his FIS, but that in the course of the investigation he has given the details of the incidents in his additional Sec.161 Cr.P.C. statement as well as Sec.164 Cr.P.C. statement and that the said incidents have brought out the incidents of penetrative sexual assault which discloses the offence as per Sec.377 of the IPC and Secs. 3 and 4 of the POCSO Act, even though, the allegations in the FIS does not disclose such allegations. 6. As stated hereinabove, the learned Prosecutor as well as the learned counsel appearing for the respondents have opposed the plea for anticipatory bail. This Court has specifically queried the learned Prosecutor as to whether the investigating officer has any complaint that the 1[st] petitioner has not co-operated with the interrogation process. The learned Prosecutor would fairly submit on the basis of the instructions of the investigating officer that the accused has co-operated with the investigating officer in the interrogation process. 7. After hearing both sides and after careful evaluation of the facts and circumstances of this case, this Court has cautioned itself that the present proceedings is essentially one for pre-arrest bail and therefore, it may not be right and proper for this Court to make a detailed evaluation of **Bail Appl..No.3806 OF 2019** **8** the allegations and counter allegations made by the opposing sides. But on a careful evaluation of the facts and circumstances of this case, this Court is inclined to take the view that the petitioners have made out a strong probable case on the basis of some of the aforesaid crucial aspects highlighted hereinabove that the custodial interrogation of the petitioners may not be really warranted or necessary for effectuating the smooth and fair conduct of the investigation of this case. However, the interrogation of the accused, more particularly, the 1[st] petitioner has been conducted by now on quite a few occasions. 8. Accordingly, in the light of these aspects, it is ordered in the interest of justice that in the event of the petitioners being arrested in relation to the abovesaid crime, then they shall be released on bail on their separately executing bonds for Rs.50,000/- (Rupees Fifty Thousand only) each and on separately furnishing two solvent sureties for the like sum, each to the satisfaction of the competent court below concerned. ## 9. However the grant of bail will be subject to the following conditions:- - _i. The petitioners shall not intimidate or attempt to influence the minor victim boy, witnesses; nor shall they tamper with the evidence._ - _ii. The petitioners shall not commit any offence while on bail._ - _iii. The petitioners shall fully co-operate with the investigating officer in the interrogation process._ - _iv. The petitioners shall report before the Investigating Officer for interrogation purposes as and when required in that connection._ - _v. The petitioners should also co-operate with the investigating officer in the conduct of any medical examination etc., if so required by the investigating officer._ - _vi. The petitioners shall not go anywhere near the residence or educational institution of the minor victim boy._ **Bail Appl..No.3806 OF 2019** **9** 10. If there is any violation of the abovesaid conditions by the petitioners then the jurisdictional court concerned will stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law. With these observations and directions, the above Bail Application will stand disposed of. sd/- **ALEXANDER THOMAS, JUDGE** ## **SKS**