Safeek @ Sabi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 10TH DAY OF JULY 2019 / 19TH ASHADHA, 1941** ## **Bail Appl..No.4766 of 2019** **AGAINST THE ORDER/JUDGMENT IN CRMP 7456/2019 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, OTTAPPALAM DATED 22-06-2019** **CRIME NO.123/2019 OF Cherpulassery Police Station , Palakkad** ## **PETITIONER/ACCUSED:** **SAFEEK @ SABI, AGED 49 YEARS S/O. KASSIM, PILLAKKUNNATH HOUSE, 29TH MILE, LAKSHAM VEEDU, KARALMANNA, CHERPULASSERY, PALAKKAD DISTRICT** **BY ADVS. SRI.K.B.ARUNKUMAR SRI.RANJIT BABU** ## **RESPONDENTS/STATE:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM,PIN-682 031 2 THE SUB INSPECTOR OF POLICE, CHERPULASSERY POLICE STATION, PALAKKAD DISTRICT,PIN679 503** ## **OTHER PRESENT:** **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.07.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.4766 of 2019 2 ## **ALEXANDER THOMAS, J.** **- - - - - - - - - - - - - - - - - - - - - - - B.A. No. 4766 of 2019 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of July, 2019** ## **O R D E R** The petitioner has been arrayed as an accused in crime no.123/2019 of Cherupulassery Police Station, which has been registered for offences punishable under Section 305 of the IPC, which deals with the offence of 'abetment of suicide of a child'. 2. The facts in this case are intimately related to the factual aspects in respect of a previous crime, in which, the petitioner has been arrayed as accused involving the very same minor victim girl. Earlier, crime no.97/2019 of Cherupulassery police station was registered for offences punishable under Sections 447, 354(A) (1)(i) of IPC and Sections 7 & 8 of the Protection Of Children from Sexual Offences Act, 2012 (POCSO Act). The prosecution case in relation to crime no.97/2019 is that the petitioner/accused, aged 49 years, had trespassed into the courtyard of the residence of the minor victim girl, aged 16 years, situated at the Lakshamveedu colony and sexually assaulted her by hugging and pressing her breast. Petitioner was arrested in relation to crime no.97/2019 on 06.04.2019 and thereafter remanded in judicial custody and later he Bail Appl..No.4766 of 2019 3 was released on regular bail on 12.06.2019. The day of occurrence of the first crime is stated to be 4.4.2019. Thereafter, minor victim girl involved in the above said first crime has committed suicide. Thereafter, it appears that the minor girl, who is the victim in the first crime no.97/2019 had consumed poison on 7.4.2019 and had later died on account of that on 19.4.2019. Consequent to that, the instant crime no.123/2019 of Cherupulassery police station was registered, initially, under Section 174 of Cr.P.C. on account of the unnatural death of the minor victim girl. Police after investigation has included the petitioner herein as the sole accused in the said crime no.123/2019 and the offence under Section 305 of IPC relating to the abetment of suicide of the child has also been added to the said crime. In crime no.123/2019 the petitioner has been again arrested on 19.6.2019 after his release on bail in the first crime on 12.06.2019 . 3. The learned counsel for the petitioner has raised several contentions. The first contention is that going by the prosecution allegation that the petitioner herein had abetted the suicide of the minor victim girl, who is the victim in the first crime and if those allegations are tenable, then the said offence as per Section 305 of IPC is intimately connected to the factual transactions in the first crime and that therefore the police could have only added an additional offence under Section 305 of IPC in the first crime No.97/2019 . If that be so, the petitioner was already granted regular Bail Appl..No.4766 of 2019 4 bail in the said first crime and was released on 12.6.2019 and that therefore without permission from the competent court concerned, police could not have arrested the petitioner and therefore his arrest and detention is per se illegal and ultravires. The second contention is that the petitioner is that even though going by the admitted prosecution allegations in the first crime no.97/2019, there only allegation is that the petitioner should be imputed with the mens rea and intention of sexually assaulting the minor victim girl for satisfying his lust by touching her body etc and since that could be the only position as per the prosecution is concerned, it cannot be assumed for a moment that such an accused will have the additional mens rea of having to instigate suicide of the minor victim girl when he is committing the minor offence of touching her body etc and that it is defiant of commonsense and logic that such an accused should be attributed the additional mens rea of instigating the minor victim girl to commit suicide when the alleged act is only that he had committed sexual assault on her by touching her body etc to satisfy his lust. Therefore, it is pointed out that the allegation against the petitioner that he has instigated suicide of the minor victim girl by his act of touching her body etc is not tenable in law and it is too far-fresh. This is all the more so because the prosecution has no case that after the incident in relation to the first crime which happened on 4.4.2019 the petitioner has in any manner contacted Bail Appl..No.4766 of 2019 5 the minor victim girl or has done any act to in any manner remotely hold that he has instigated suicide of the minor victim girl. The learned counsel for the petitioner has also relied on various rulings of the Apex Court and this Court which has dealt with the parameters of the legal ingredients to be satisfied in respect of the offences under Sections 107 and 306 of IPC in decisions as in **Sanju @ Sanjay Singh Sengar v. State of M.P. [ 2002 SCC (Crl.) 1141]** , **Krishnadas v. State of Kerala [2017 (2) KLT 579** ], **Gurucharan Singh v. State of Punjab [2016 (12) SCALE 414]** , **Harikrishnan & Anr. v. State of Kerala and Anr. [2019 (3) KHC 437]** 4. On the basis of the above said principles laid down in the above rulings, the counsel for the petitioner strongly urged that none of the vital requirements of of abetment as per Section 107 of IPC or abetment of suicide of a child as envisaged in Section 305 of IPC are even remotely established in this case. 5. Per contra, the learned Public Prosecutor would seriously oppose the grant of regular bail and would pint out that the incident of death of the minor victim girl on account of consuming poison is an independent incident and more over the said offence under Section 305 of IPC is punishable with imprisonment for life or for a term not exceeding ten years and is triable by court of sessions and there is nothing Bail Appl..No.4766 of 2019 6 intrinsically illegal or improper in the police registering separate FIR in relation to crime under Section 305 of IPC even though the victim and the accused are the same in both the crimes. Further, it is pointed out that since the offence under Section 305 of IPC is triable by a court of sessions and punishable with imprisonment for life or for a term of 10 years etc is a serious offence and investigation has to be conducted unhampered and there is strong likelihood of the petitioner influencing the witnesses even by the family members of the deceased in the course of the investigation, it is not right and proper to grant regular bail to the petitioner, more particularly, at this stage. 6. After hearing both sides and after carefully evaluating the facts of this case and taking note of the legal principles laid down by the Apex Court in relation to the ingredients for the offences as per Sections 107 and 305 of IPC and also taking into account that the allegations in both the crimes are inter connected and as the petitioner has already undergone the detention for 66 days and as the petitioner has also undergone detention in the instant crime for the last two weeks, this court is inclined to take the view that the further detention of the petitioner may not be necessary. However, the apprehension raised by the prosecution about the likelihood of the petitioner influencing the witnesses has to be dealt with by issuing by necessary safeguards in the conditions granting bail, which this court Bail Appl..No.4766 of 2019 7 proposes to be ordered. 7. In the result, it is ordered that the petitioner shall be released on bail on his executing a bond for a sum of Rs.40,000/- (Rupees forty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court below concerned. The above order shall be subject to the following conditions: - (i) The petitioner shall appear before the investigating officer on all 2[nd] and 4[th] Saturdays at any time between 10 a.m and 1. p.m for a period of 4 months and thereafter he will appear before the investigating officer as and when directed by the said officer. - (ii) He shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. - (iii) He shall fully co-operate with the investigation. - (iv) He shall not commit any similar offence while on bail. - (v) He shall not visit or go anywhere near the residence of the family members of the deceased victim girl or reside until the conclusion of the investigation process. - (vi) He shall not reside anywhere within the territorial limit of the police station where the family members of the minor victim girl are residing until conclusion of the investigation process Bail Appl..No.4766 of 2019 **==> picture [8 x 9] intentionally omitted <==** except for the limited _purpose of reporting before the Investigating Officer in relation to this crime or any other crime or for attending any courts in relation to this case or for contacting his Advocate/Lawyer concerned._ However, it is made clear that in case the petitioner has any emergent personal need to visit the said area, he may be do so but only with the prior permission of the investigating officer. In violation of any of the above conditions, the jurisdictional court concerned shall be stand hereby empowered to consider the application for cancellation of bail, if required, and pass appropriate orders in accordance with law. With the above observations and directions, the above bail application stands disposed of. **Sd/-** ## **ALEXANDER THOMAS** shg **JUDGE**