Shajeev S v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942** ## **Bail Appl..No.5006 OF 2020** **CRIME NO.1025/2020 OF Petta Police Station , Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **SHAJEEV S AGED 49 YEARS A.S. PALACE, KALLIPARA, NANNIYODE, PACHA P.O., NEDUMANGADU TALUK, PALLODE VILLAGE, THIRUVANANTHAPURAM DISTRICT 695033 BY ADVS. SHRI.SUSANTH SHAJI SRI.VARGHESE C.KURIAKOSE** ## **RESPONDENTS/STATE AND INVESTIGATING OFFICERS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031 2 THE CIRCLE INSPECTOR OF POLICE THE CIRCLE INSPECTOR OF POLICE , PETTAH POLICE STATION, PETTAH, THIRUVANANTHAPURAM DISTRICT 695024 3 THE SUB INSPECTOR OF POLICE THE SUB INSPECTOR OF POLICE, PETTAH POLICE STATION, PETTAH, THIRUVANANTHAPURAM DISTRICT 695024** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.RENJITH.T.R, PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 5006 OF 2020 2 ## **P.V.KUNHIKRISHNAN, J** -------------------------------- ## B.A.No.5006 of 2020 ------------------------------Dated this the 12[th] day of August, 2020 ## **O R D E R** This Bail Application filed under Section 439 of Criminal Procedure Code was heard through Video Conference. 2. Petitioner is the accused in Crime No. 1025 of 2020 of Petta Police Station registered alleging offences punishable under Section 354A of IPC and Sections 8,10 and 12 of the Protection of Children from Sexual Offence Act, 2012. 3.The prosecution case is that the petitioner who is a police officer, aged 49 years committed aggregative sexual assault and sexual harassment against a minor girl aged 14 years, on different occasions by touching the private parts of the victim girl. There are other allegations also against the petitioner. 4. Heard the counsel for the petitioner and the learned B.A.No. 5006 OF 2020 3 Public Prosecutor. The counsel for the petitioner submitted that the petitioner earlier filed a Bail Application under Section 438 Cr.P.C and this Court disposed that Bail Application with a direction to surrender before the Investigating Officer. As directed by this Court, the petitioner surrendered before the Investigating officer on 13.7.2020. The counsel submitted that the offence under Section 354A is bailable. The counsel further submitted that the other offences alleged against the petitioner are under Sections 10 and 12 of the POCSO Act. Under Section 10 of the POCSO Act, the maximum punishment that can be imposed is upto seven years. Under Section 12 of the POCSO Act, the maximum punishment that can be imposed is upto three years. The counsel submitted that the petitioner is in custody from 13.7.2020 onwards. The counsel also submitted that this is a false case registered against the petitioner. The counsel submitted that there was a relationship between the petitioner and the mother of the victim. It is also submitted by the counsel that there was some money transactions between the petitioner and father of B.A.No. 5006 OF 2020 4 the victim. When the relationship with the mother of the victim with the petitioner came in the ears of the father of the victim, this false case is filed against the petitioner. The counsel submitted that the petitioner is ready and willing to abide any conditions, if this court granting him bail. 5. The Public Prosecutor very seriously opposed the Bail Application. The learned Public Prosecutor submitted that the allegations against the petitioner are very serious. Petitioner is a police officer. These types of activities of the petitioner cannot be accepted especially from a police officer. The Public Prosecutor produced the Section 164 Cr.P.C statement of the victim also before this Court. It is submitted by the Public Prosecutor that since the allegation against the petitioners are very serious, this Court may not release the petitioner under Section 439 Cr.P.C at this stage. 6. Admittedly the offences alleged against the petitioner are under Section 354 A and Sections 8,10 and 12 of the POCSO Act. Section 354 A is a bailable offence. As far as Sections 8,10 and 12 of the POCSO Act is concerned, the B.A.No. 5006 OF 2020 5 maximum punishment that can be imposed is only upto seven years. It is true that the allegations against the petitioner are very serious. But one aspect is to be noted in this case. The petitioner earlier filed a Bail Application before this Court with certain documents to show that there was a relationship between the petitioner and the mother of the victim. This Court at that time observed that those documents cannot be part of the Bail application. Those documents will create unnecessary problem in the matrimonial relationship of the parents of the victim. Even after knowing a small aberration from the part of the mother, the father of the victim was ready to excuse the same. At that stage, the counsel for the petitioner submitted that he will withdrew the bail application with liberty to file it again. Hence this Court passed the following order. _“The counsel for the petitioner submitted that he is ready to withdraw this bail application and take back the Annexures produced along with the bail application. This Court feel that the Annexures produced along with the bail application ought not have been produced and should not be part of the record. Therefore, the petitioner is allowed to withdraw this bail application with liberty to file it again. The Registry will return the Annexures produced along with this_ B.A.No. 5006 OF 2020 6 _bail application. The Registry will take steps to delete the Annexures from all records including online records.”_ 7. Accordingly, this bail application is filed. The petitioner has got a definite case that, he is falsely implicated in this case. A perusal of the 164 statement also shows that the alleged incident happened, according to the victim was in 2015, 2017 and 2018. Thereafter, the present complaint is filed in 2020. I don't want to make any observation about the merits of the case. It is a matter to be investigated by the investigating officer. 8. Considering the entire facts and circumstances of this case, I think the petitioner can be released on bail on stringent conditions. The victim and her mother is residing within the jurisdiction of Petta Police Station. Therefore, there can be a condition that the petitioner shall not enter the jurisdiction of Petta Police Station till final report is filed in Crime No. 1025/2020. 9. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the B.A.No. 5006 OF 2020 7 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 and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1. Petitioner shall be released on bail on executing a bond for Rs.50,000/-(Rupees Fifty B.A.No. 5006 OF 2020 8 Thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. 2. 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. 3. Petitioner shall not leave India without permission of the Court. 4. 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. 5. The petitioner shall not enter the B.A.No. 5006 OF 2020 9 jurisdictional limits of Petta Police Station till final report is filed in Crime No. 1025/2020. 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 pandemic. 7. 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** al/-