Sivan Nair v. The Sub Inspector of Police Vilappilsala Police Station, Thiruvananthapuram and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 22ND DAY OF NOVEMBER 2019 / 1ST AGRAHAYANA, 1941** ## **Bail Appl..No.8256 OF 2019** **AGAINST THE ORDER IN CRL MC 2627/2019 DATED 08-11-2019 OF ADDITIONAL SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN)** **CRIME NO.707/2019 OF Vilappilssala Police Station , Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **SIVAN NAIR,AGED 75 YEARS S/O NEELAKANTA PILLAI,SREEVALSAM,VP 5/1297, PULIYORKONAM,THIRUVANANTHAPURAM.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 THE SUB INSPECTOR OF POLICE VILAPPILSALA POLICE STATION, VILAPPILSALA,THIRUVANANTHAPURAM DISTRICT, PIN-695573.** **2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM,KOCHI-682031.** **R1-2 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SRI.AMJAD ALI, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No.8256/2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- ## B.A.No.8256 of 2019 ---------------------------------------------Dated this the 22[nd] day of November, 2019 ## **ORDER** The petitioner herein has been arrayed as the sole accused in the instant Crime No.707/2019 of Vilappilshala Police Station, Thiruvananthapuram, which has been registered for offence as per Sections 7 of the Protection of Children from Sexual Offences Act, 2012, which is punishable as per Section 8 thereof. The above said crime has been registered on the basis of the First Information Statement given by the mother of the minor victim girl, now aged 7 years, on 26.10.2019 at about 6.15 p.m. in respect of the alleged incident which is said to have happened on a day in the year 2014. 2. The prosecution case in short as revealed from the said F.I. Statement is that the date of birth of the minor victim girl is 17.12.2012 and that earlier the minor victim girl, her sibling and parents were living in the immediate neighbourhood of the residence of the petitioner/accused now aged 75 years, who was residing along with his wife there and that the minor victim girl used to visit the residence of the petitioner at morning time on days on which she was not having school and further that the petitioner has kissed the minor victim girl and B.A.No.8256/2019 3 touched her private parts. Further it is stated that the petitioner has done the above acts in the year 2014. In the F.I. Statement, it is stated that the above said information has been collected by the victim’s mother from the victim. The victim’s mother is stated to be working in a Television Channel Company. Nowhere it is stated as to whether the incident in question has happened only on one occasion or whether it has happened more than once. 3. The learned counsel for the petitioner would point out that the above said allegations are absolutely false and fabricated and that even going by the admitted case of the de facto complainant, the victim girl’s date of birth is 17.12.2012 and so indisputably she has completed only 1 year and 1 month in January 2014 and she could have completed two years in the 2[nd] week of December, 2014. Further that the victim girl and her family members are never residing the neighbourhood of the petitioner in the year 2014 and they started residing near the petitioner’s house only some time in March 2015 or thereafter. Further it is pointed out that it is almost humanly impossible for any child to recollect as to what exactly would have happened at a time when she was hardly one year plus and to reiterate the same after six long years. That when the anticipatory bail application has been argued on behalf of the petitioner before the Special Sessions Court, Thiruvananthapuram, the petitioner’s counsel had specifically submitted before the Court about this crucial aspect and also the fact that the victim and her family members are B.A.No.8256/2019 4 residing near the petitioner’s house only from March 2015 onwards. Thereafter, the Police Officer has, very cleverly, taken an additional statement of the victim and has given additional report before Special Court stating that the incident has happened in March 2015, after the victim’s family had shifted the residence to the neighbourhood of the petitioner. Further it is pointed out that even if it is assumed only for argument sake that the incidents had happened in the year 2015, then also it is specifically clear that the victim would have been the hardly age of 2 years and two months in March, 2015 and she would have completed the age of three years in the 2[nd] week of December, 2015 and then also, it is humanly impossible for any child to recollect as to what would have happened when she was hardly the age of two plus and to reiterate the same after five long years. That these crucial aspects have not been taken into consideration by the Investigating Officer or by the Court below and that the Investigating Officer in this case is taking illegal and hasty steps to some or other name the petitioner and he is taking steps to ensure that the petitioner is charged sheeted at any cost etc. Further it is pointed out that the alleged incident is said to have happened in the year 2014 and the F.I.S.and the crime has been lodged as late as on 25.10.2019 and there is delay of more than 5 ½ long years in the lodging of the case and no credible explanation whatsoever has even been remotely offered by the prosecution to justify the long and ominous delay in this regard which would fatally vitiate the impugned criminal proceedings. Even if it is B.A.No.8256/2019 5 assumed that the incident had happened in the year March 2015 as is now sought to be permitted by the Investigating Officer, there is still delay of about 4 ½ years, which would equally vitiate the impugned criminal proceedings. The learned counsel for the petitioner would place reliance on the decisions of the Apex Court as in _**Thuliya Kali**_ v. _**State of Tamil Nadu**_ [AIR 1973 SC 501], _**State of Andhrapradesh**_ v. _**M.M. Madhusoodhana Rao**_ [2008 (15) SCC 582], wherein the Apex Court has dealt with the cardinal principles relating to the delay in registration of F.I.R. It has been held therein that the delay in lodging the F.I.R will more often than not resulting in the embellishment and exaggerations, which is creation of an afterthought. The delay in report not only gets bereft of spontaneity but also the danger of introduction of coloured version, exaggerated on account of the incident or a concocted story as a result of deliberations and consultations, which would cast serious doubts on the very veracity of the prosecution story. Therefore, it has been held that it is highly essential that the delay in lodging of the F.I.R. should be satisfactorily explained by the prosecution. Resultantly, as the substratum of the evidence given by the complainant is found to be unbearable, the prosecution case has to be rejected in its entirety etc. The learned counsel for the petitioner has also pointed out that the petitioner, who is aged 74 years is suffering from serious ailments as is evident from Anneures-A medical records issued by the PRS Hospital, Thiruvananthapuram and Annexure-B treatment certificate issued by the B.A.No.8256/2019 6 Department of Cardiology of the Govt. Medical College Hospital, Thiruvananthapuram. The learned counsel for the petitioner would also urge that going by the nature of the allegations in this case, the custodial interrogation of the petitioner is not in any manner warranted for effectuating the investigation in this crime and that the petitioner will fully co-operate with the Investigating Officer in the process of the above said interrogation and in the various steps of the investigation process. 4. The learned Public Prosecutor has opposed the plea for anticipatory bail. 5. After hearing both sides, this Court is constrained to take certain observations only for the limited perspective of considerations of the above said contentions raised by the petitioner’s counsel in this anticipatory bail plea that it may be almost impossible for any child to recollect what would have happened, then he or she is of the age of one year plus or two years plus and to reiterate the same after about six long years or five long years, as the case may be. The mother of the child is stated to be highly qualified professional and she is stated to have collected all the requisite details from the child and then has given the F.I. Statement to the Police. In the F.I.S , none of the specific and precise details as to even the day or month in which the events would have taken place is not suggested. All what suggested is that the minor victim girl used to visit the residence of the petitioner in morning time on days on which she is not having school. But it is not with recited any clarity B.A.No.8256/2019 7 whether the incident had happened only once or more than one occasions. On the other hand, it is stated towards the last part of the F.I.S that the incident of kissing the lips and touching the private parts had happened in the year 2014. It further appears that the petitioner had made submission before the Special Court while arguing the anticipatory bail application that the victim and her family members had never resided in the petitioner’s vicinity at any time prior to March 2015 and that they had started residing in his neighbourhood only from March 2015 onwards. It appears that, at that point of time, the Investigating Officer is said to have given an additional report to the Court stating that the incident had happened in March 2015. The above said change of the prosecution story has to be viewed seriously. A reading of the F.I.S would make it clear that nowhere it is stated as to when the incident had happened, except saying that it had happened in the year 2014. There is of course one version in the F.I.S that the minor victim girl used to visit the residence of the petitioner in morning time on days on which she is not having school. Nowhere it is remotely mentioned in the F.I.S that the girl used to frequently visit the petitioner’s residence on Saturdays and Sundays whereas the Investigating Officer for reasons only known to him, has stated in Coloumn No.12 of the F.I.R, as if the contents of the F.I.S., that the minor victim girl used to go to the residence of the petitioner frequently on Saturdays and Sundays and thereby giving implication as if the incident could have happened on more than one occasions. It is too B.A.No.8256/2019 8 elementary to require any judicial pronouncement that coloumn No.12 of the F.I.R. is only reiteration and correct understanding of the Police Officer as to the correct and accurate contents of the F.I.S given by the first informant. The Police Officer cannot make any embellishments or exaggerations while writing and filling up the coloumn No.12 of the F.I.R. It is also too trite to require the citation of any judicial authority that the solemn duty of an Investigating Officer is not merely to charge sheet a person who is an accused in F.I.R., at any cost. On the other hand, it is too well established that the solemn duty of an Investigating Officer is to ferret out the unvarnished the truth of the matter and a heavy responsibility cast on the Investigating Officer is to ferret out the truth of the matter. So it does not require any judicial authority that it is not the business of the Investigating Officer to only focus on charge sheeting an accused in the F.I.R at any cost, but to bring out the truth so that innocent persons are not falsely implicated and so that the guilty are hooked as per the due process of law. 6. After hearing both sides and after careful evaluation of the facts and circumstances of the case and taking note of the long and unexplained delay in the lodging of the case and also taking into account the fact that the victim was hardly one year plus at the time of the alleged incident in the year 2014 or at best two year plus at the time of the alleged occurrence in March 2015 etc. and also taking into account the nature of the allegations in the case as well as the extreme old age of the petitioner B.A.No.8256/2019 9 and also taking note of the cardiac ailments suffered by the petitioner as is discernible from Annexures-A and B etc., this Court, without any hesitation, would hold that the petitioner has made out a strong probable case that his custodial interrogation is not necessary or warranted for effectuating the fair and smooth conduct of the investigation in this case. The prosecution case has no case that the petitioner would flee away and abscondon from the long arm of the law. The petitioner has no case that he has any opportunity to tamper with evidence or to influence or intimidate the witnesses as the victim and her family members are residing quite far away. The prosecution has no case that the petitioner is in any way influential socially or politically so as to alter the course of the investigation in any manner etc. Accordingly, it is ordered in the event of the petitioner being arrested in relation to the above said crime, then he shall be released on bail on his executing a bond for Rs.40,000/- (Forty thousand only) and on his furnishing two solvent sureties each for the like sum both to the satisfaction of the Investigating Officer concerned. However, the grant of bail will be subject to the following conditions: - _(i) The petitioner will appear before the Investigating Officer for interrogation purposes as and when directed by him._ - _(ii) The petitioner will fully co-operate with the Investigating Officer in the conduct of the interrogation process and all further steps in the investigation process._ - _(iii) The petitioner shall not involve in any criminal offences of similar nature while on bail._ B.A.No.8256/2019 10 - _(iv) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ If there is any violation of the abovesaid conditions by the petitioner, then the jurisdictional court concerned will stand hereby empowered to consider the plea for cancellation of bail at the appropriate time. Before parting with this case, this Court would observe that this Court is not in a position to appreciate as to how the Special Sessions Court has denied the anticipatory bail to the petitioner in the facts of this case and would also call upon the State Police Chief, Thiruvananthapuram to call for the entire CD records in relation to the instant Crime No.707/2019 of Vilappil Police Station and get the entire CD filed examined by a Senior and responsible Police Officer not below the rank of Asst. Commissioner of Police/Deputy Superintendent of Police, who may ascertain about the nature of the allegations made in this case and about the nature of the investigation so far done and as to whether the investigation has proceeded in the proper and right lines and also as to whether there are serious deficiencies in the conduct of the investigation etc. The State Police Chief may take necessary steps in the matter in exercise of his supervisory jurisdiction as the head of the State Police Force, as it deems fit and appropriate. This Court would only expect and hope that the State Police Chief would certainly rise up to the occasion and B.A.No.8256/2019 11 would also appreciate the above said observations made by the Court hereinabove and would take necessary steps to ensure that the confidence of the Public in the impartiality and fairness of the Police investigating machinery is instilled and upheld, so that false implication is avoided at any cost. The learned Public Prosecutor is requested to furnish a copy of this order to the State Police Chief, Thiruvananthapuram, for necessary information. With these observations and directions, the above bail application will stand disposed of. sd/- **ALEXANDER THOMAS, JUDGE.** acd