Rajesh v. State of Kerala and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas
Judgment Date: 2019-12-19
Court Decision / Holding: The petitioner is granted regular bail on a bond of Rs. 40,000 with two solvent sureties of Rs. 40,000 each, subject to conditions including regular appearance before I.O., cooperation with investigation, non-intimidation of witnesses, non-commission of offences, staying away from the de facto complainant's area, unless for reporting to I.O. or attending court, and with contingency allowances for emergent circumstances; bail will be disposed of upon compliance.
Final Disposition: Regular bail granted and bail application disposed of

Parties to the Case

Appellants / Petitioners

Rajesh

Respondents

The State of Kerala
Circle Inspector of Police, Vadakkenchery Police Station, Palakkad District
Victim (X)

Legal Representation & Advocates

Counsels for Petitioners

• Baby Mathew, Advocate

Counsels for Respondents

• Public Prosecutor, High Court of Kerala
• Adv. Ignatius M.

Case Synopsis & Summary

Rajesh, the sole accused in Crime No. 697/2019 of Vadakkenchery Police Station, Palakkad, challenges a detention order in a case registered under IPC sections 363 and 354, and under the POCSO Act (including sections 4, 3A, 6, 5(j)(ii), 5(l) and 5(n)) as well as section 75 of the Juvenile Justice Act. The victim, aged about 19 at the time of the petition, delivered a child on 18 November 2019 and has stated that she conceived after a long relationship with Rajesh, who is her cousin. The prosecution contends the investigation is at a nascent stage and, given the close relationship, there is a credible risk of intimidation or influence. The petitioner submits that the victim crossed the age of majority on 11 November 2018; hence the pregnancy in February 2019 implies consent, and the alleged sexual incidents prior to majority could be outside the POCSO scope. She also filed Anx-A3 affidavit indicating no objection to bail. The court acknowledges the majority status and the likelihood of consent, and after balancing interests, grants regular bail with stringent conditions to ensure cooperation and prevent intimidation, while avoiding unnecessary detention during investigation. The order notes the victim’s statements and the relationship, but ultimately disposes of the bail application in the petitioner’s favor.

Provisions of Law Cited

Section 363 IPCSection 354 IPCSection 376(2) IPCSection 376(2)(f) IPCSections 4, 3A, 6, 5(j)(ii), 5(l) & 5(n) of the POCSO ActSection 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015

Legal Doctrines & Maxims

Consent of a major victim is a relevant factor in sexual offences under POCSO
POCSO applies to offences against persons below the age of majority; where the victim has attained majority, consent may influence the assessment of offences

Submissions & Arguments

Contentions of Appellants / Petitioners

The counsel for the petitioner argued that the victim's date of birth is 11.11.2000, she became major on 11.11.2018, and pregnancy occurred in February 2019, implying consent could be relevant for acts post-majority. The long-standing affair between the cousins and a pre-existing inclination toward marriage supports leniency. The victim's Anx-A3 affidavit states no objection to bail. The prosecution's theory that POCSO offences might apply to earlier times is not borne out by the major status at the relevant time; the court is urged to grant regular bail with stringent conditions to ensure cooperation and to avoid unnecessary incarceration until investigation completes.

Contentions of Respondents

The State opposed bail on grounds that investigation is at a nascent stage and the accused, being a close relative, may influence witnesses and intimidate the victim and her family. The fact that the acts may have occurred within a familial relationship heightens concerns about tampering with evidence and ongoing investigations, justifying strict bail conditions or denial if needed.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 19TH DAY OF DECEMBER 2019 / 28TH AGRAHAYANA, 1941 Bail Appl..No.9251 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CRMP 4375/2019 DATED 13-12-2019 OF SPECIAL COURT-TRIAL OF OFFENCE UNDER SC/ST(POA)ACT1989, MANNA** **CRIME NO.697/2019 OF Wadakkancherry Police Station , Palakkad** ## **PETITIONER/S:** **RAJESH, AGED 23 YEARS S/O.RAJAN, KARIKKALAKULAMBU, PORAGORAM, VANDITHAVALAM P.O., PALAKKAD DISTRICT - 678 534.** ## **BY ADV. SRI.BABY MATHEW** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF**| ||**KERALA, ERNAKULAM.**| |**2**|**CIRCLE INSPECTOR OF POLICE,**| ||**VADAKKENCHERY POLICE STATION, PALAKKAD DISTRICT.**| |**3**|**VICTIM,**| ||**X**| ||**R3 BY ADV. SHRI.IGNATIUS M.**| ## **OTHER PRESENT:** ## **SRI. SAIJI JACOB PALATTY- SR.GP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: **Bail Appl..No.9251 OF 2019** ## **ALEXANDER THOMAS, J** . ----------------------------B.A.No.9251 Of 2019 --------------------------------Dated this the 19[th] day of December, 2019. ## **O R D E R** The petitioner herein has been arrayed as the sole accused in the instant Crime No.697/2019 of Vadakkenchery Police Station, Palakkad district, which has been registered for offences punishable under Secs.363, 354, 376(2), 376(2)(f), Secs.4, 3A, 6, 5(j)(ii), 5l & 5n of the POCSO Act and Sec.75 of the Juvenile Justice (Care and Protection of Children), Act, 2015. 2. The brief of the prosecution case is that the date of birth of the victim involved in this case is 11.11.2000 and she has completed the majority age of 18 years on 11.11.2018 and that it was reported that she has given birth to a girl child on 18.11.2019 in the hospital concerned and the Police has now taken the statement of the lady victim wherein she has stated that she became pregnant on account of her sexual relationship with the petitioner, aged 23 years, who is her first ::3:: **Bail Appl..No.9251 OF 2019** cousin and that she was having a long love affair for quite some time from 2015 onwards. On this basis the abovesaid crime has been registered on 24.11.2019 at about 6:20 p.m. in respect of the alleged incidents happened for the period from 1.1.2015 to 30.9.2019. The petitioner has been arrested in this case on 3.12.2019 and remanded on the same day and since then he is under detention. 3. The learned counsel for the petitioner would point out that the abovesaid allegations are false and baseless and further that even going by the admitted case of prosecution, the date of birth of the victim is 11.11.2000 and she has duly completed the majority age of 18 years on 11.11.2018 and she has delivered a child on 18.11.2019 and therefore she could have become pregnant only by February, 2019 on which day she was already a major and the factum of delivery of the child so as to impute criminal culpability on the petitioner is not right and proper for the simple reason that even going by the prosecution case, the lady victim was a major at the time when she conceived the child and so consent is relevant. All the ::4:: **Bail Appl..No.9251 OF 2019** other allegations regarding the alleged relationship between the parties in 2015, are factually wrong and baseless. Further that the lady victim in this case is the petitioner's mother's brother's daughter and they are first cousins and both their families have more or less decided to solemnise their marriage without much delay. Further it is pointed out that the lady victim in this case has sworn to Anx-A3 affidavit dated 8.12.2019 stating that she has no objection for the grant of regular bail to the petitioner in this case. Accordingly, it is urged that this Court may grant regular bail to the petitioner subject to any stringent conditions. Further that, the admitted case of the victim is that she was having a love affair with the petitioner and the sexual incidents have happened only on the basis of consent and if that be so, the sexual incidents which led to her pregnancy in February, 2019 may not invite any offence as per POCSO Act. That even as per the victim's case, she was maintaining sexual relationship with her consent. ::5:: **Bail Appl..No.9251 OF 2019** 4. The learned Prosecutor has seriously opposed the plea for regular bail and has pointed out that the investigation of the Crime is at the threshold stage and there is every possibility of the petitioner influencing and intimidating the victim and her family members, if he is let out of on bail and that it is all the more so, the parties are close relatives. 5. After hearing both sides and on a careful evaluation of the facts and circumstances, it is seen that the lady victim has duly completed the majority age of 18 years on 11.11.2018 and going by the prosecution case since she has delivered the baby child on 18.11.2019, she would have conceived and became pregnant in February, 2019 and the sexual act which led to the pregnancy and delivery would be happened only in February, 2019, on which day, the victim was already a major and so consent assumes great importance. Of course, there are other allegations that the parties were maintaining a sexual relationship for quite some time from 2015 onwards and therefore in respect of the alleged sexual incidents which happened for the period from 2015 up to 10.11.2018 may attract the offence as per POCSO Act as the consent is immaterial. Moreover, it appears the the lady victim has filed Anx- ::6:: **Bail Appl..No.9251 OF 2019** A3 affidavit dated 8.12.2019 wherein she has stated that she has no objection for the grant of regular bail to the petitioner. In the light of these aspects, this Court is inclined to take a lenient view so that further incarceration of the petitioner could be avoided so that he could be released on regular bail subject to any stringent conditions. However, taking note of the apprehension raised by the prosecution, it is ordered that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the lady defacto complainant is residing or studying until the completion of the investigation process, subject to certain exceptions, which will be dealt with hereinafter. 7. Accordingly it is ordered in the interest of justice that the petitioner shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Forty Thousand only) and on his furnishing two solvent sureties for the like sum each, both to the satisfaction of the competent court below concerned. However the grant of bail will be subject to the following conditions:- - _i. The petitioner shall appear before the Investigating Officer (I.O.) on every 2[nd] and 4[th] Saturdays, at any time between 9:00 a.m and 1:00 p.m, for a period of 3 months and thereafter as and when required by the said I.O._ ::7:: **Bail Appl..No.9251 OF 2019** - _ii. The petitioner shall fully co-operate with the investigation._ - _iii. The petitioner shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence._ - _iv. The petitioner shall not commit any offence, more particularly of similar nature, while on bail._ - _v. The petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the lady de facto complainant is residing or studying until the conclusion of the investigation process, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyers/advocates concerned._ - _vi. However if on account of any emergent personal needs the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ - _vii. If the petitioner violates all or any of the bail conditions, then the jurisdictional court concerned will stand hereby authorised, to consider the plea for cancellation of bail, if required, in accordance with law._ With these observations and directions, the above Bail Application will stand disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::8:: **Bail Appl..No.9251 OF 2019**