Sayed Salavudheen Bukhari Thangal v. State of Kerala

BA.No.6698 OF 2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** **Bail Appl..No.6698 OF 2020** **CRIME NO.469/2020 OF Kalpakanchery Police Station , Malappuram** ## **PETITIONER/ACCUSED:** **SAYED SALAVUDHEEN BUKHARI THANGAL AGED 35 YEARS SON OF SAIDALAVI KOYA THANGAL, VALIYAKKATHODI HOUSE, KANMANAM POST, MALAPPURAM DISTRICT. PIN-676551** **BY ADV. SRI.K.M.SATHYANATHA MENON** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM-682031 2 CIRCLE INSPECTOR OF POLICE, KALPAKANCHERRY POLICE STATION, MALAPPURAM, PIN-676 551** **SRI.RENJITH.T.R., PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** BA.No.6698 OF 2020 2 ## **O R D E R** **Dated this the 11th day of November 2020** This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the accused in Crime No.469/2020 of Kalpakancherry Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 363, 354A(i)(ii) IPC. The offence under Section 9(l)(f) r/w 10 of the POCSO Act is also alleged. The offence under Section 75 of Juvenile Justice (Care and Protection of Children) Act and Section 66E of Information Technology Act is also alleged against the petitioner. 3. The prosecution case in nutshell is like this: The accused is a teacher of Badarul Huda Woman's Academy Higher Secondary School, Varanakkara. It is the prosecution case that the victim in this case was a student in that school. The prosecution alleged that the petitioner promised the victim in this case that he will marry her and persuaded her to sent nude photos to the mobile of the accused. It is alleged that on 25.5.2020 the petitioner called the victim to the bath room of the school and then BA.No.6698 OF 2020 3 kissed her and touched on her private parts. Thereafter on 31.5.2020 the accused took the minor gilr in a car to Vettichira and gave bangle to the victim saying that the nikah performed and then kissed and pressed her breast. Thereafter on 25.8.2020 at 11.50 hours the accused again called the victim to the bath room of the school and also caused sexual assault. This is the sum and substance of the case. 4. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 5. The counsel for the petitioner submitted that this is a false case foisted against the petitioner. According to the counsel, the brother of the petitioner by name Sayed Hussain Koya Bhukhari Thangal is the Chairman of the said school where the petitioner is working. The school is an educational trust. Annexure A1 is the trust deed. According to the counsel, there was some dispute about the chairmanship of the petitioner's brother with one Kunju. According to the counsel, there are two groups in the Samastha Kerala Sunni Yuvajana Sangham. The brother of the petitioner is on one side of the group and the above said Kunju is on the other side. The father of the victim is very close to Kunju. The counsel submitted that Annexures 7 and 8 will show that the above said Kunju and the father of the victim are the members of the BA.No.6698 OF 2020 4 Samastha Kerala Sunni Yuvajana Sangham. The counsel submitted that in connection with the chairmanship of the trust, the brother of the petitioner was kidnapped and attacked by the opposite side. Complaints were filed before the police. No action was taken. Thereafter, the petitioner submitted a written complaint to the District Police Chief and even to the Chief Minister. The petitioner produced documents to prove the same. At this stage, at the instance of the father of the victim, a false case is foisted against the petitioner. The counsel submitted that the allegations against the petitioner are false. Moreover, the counsel also submitted that the maximum punishment that can be imposed as per the offences alleged in this case are only upto seven years. Therefore, the petitioner is entitled the benefit of the Full Bench decision of this Court in W.P(C) No.9400/2020. 6. The learned Public Prosecutor very seriously opposed the bail application. The Public Prosecutor submitted that this is an application under Section 438 Cr.P.C. The Public Prosecutor submitted that the allegation against the petitioner is very serious. He was a teacher of a school. The allegation is that he abused a student of the school. The Public Prosecutor submitted that the petitioner handed over an Android phone to the victim and there was continuous chatting between the victim girl with the petitioner. BA.No.6698 OF 2020 5 The recovery of the phone is necessary. For that purpose, custodial interrogation of the petitioner is necessary. 7. The Public Prosecutor made available the first information statement and the statement of the victim recorded under Section 164 Cr.P.C. An additional report of the investigating officer is also produced by the Prosecutor. 8. It is true that the allegation against the petitioner is very serious. He is a teacher of a school and the allegation is that he sexually abused the minor girl with a promise that he will marry her. But a definite defence is taken by the petitioner to the effect that it is a case of false implication at the instance of another group of a particular organisation in which the petitioner and his brother are members. The specific allegation and specific averments are there in the bail application. The petitioner produced certain documents to substantiate the case that the brother of the petitioner was even kidnapped by the other group and a police complaint is also filed. When there is specific averment about false implication, this Court directed the Public Prosecutor to get additional instruction whether there is anything in the mobile phone of the mother of the victim to show that the victim and the petitioner communicated each other. In the FIR, the case of the prosecution is that the victim communicated with the petitioner BA.No.6698 OF 2020 6 through the mobile phone of her mother. The case was posted for instruction of the Public Prosecutor. The Public Prosecutor submitted that a further report from the police is obtained in which it is stated that the mother was using an ordinary phone and not an Android phone. A reading of the first information statement will show that the victim and the petitioner was communicating each other using a phone of the victim's mother. Admittedly, that will be available with the investigating officer. But even after giving an opportunity to the investigating officer, the investigating officer was not able to produce any materials to show that there was communication between the petitioner and the victim through the phone of the mother. Now a new statement is obtained saying that it is not an Android phone and therefore the other details can't be recovered. I don't want to make any observation about the merit of the case. These are matters to be investigated by the investigating officer. Admittedly, the maximum punishment that can be imposed to the petitioner for the offences alleged in this case are below seven years. I think the benefit of the Full Bench decision in W.P(C) No.9400/2020 is available to the petitioner. When there is a specific allegation that there is false implication in a POCSO case and some documents are also produced to prove the same, this Court cannot shut its eye and deny the bail mechanically. This is a BA.No.6698 OF 2020 7 question of personal liberty. I again make it clear that, all the allegations are to be investigated by the investigating officer. The investigating officer is free to investigate the matter untramelled by any observation in this bail order. But considering the entire facts and circumstances of the case, I think, this bail application can be allowed on stringent conditions. 9. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re:** **Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ** **Petition(C) No.1 of 2020)** and a Full Bench of this Court in **W.P(C)No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 10. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram. P v Directorate of Enforcement (2019 (16)** **SCALE 870),** after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. 11. Considering the dictum laid down in the above decision BA.No.6698 OF 2020 8 and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. 2. After interrogation, if the Investigating Officer propose to arrest the petitioner, he/they shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned. 3. The petitioner shall appear before the Investigating Officer for interrogation as and when required. The petitioner shall co-operate with the investigation and shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. 4. Petitioner shall not leave India without permission of the jurisdictional Court. 5. Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 6. The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 BA.No.6698 OF 2020 9 ## pandemic. 7. The petitioner shall appear before the investigating officer on all Mondays and Fridays at 10 am for a period of three months. 8. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. **Sd/-** **P.V.KUNHIKRISHNAN** **JUDGE** **ab**