Sunil Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941** ## **Bail Appl..No.8467 OF 2019** **CRIME NO.1560/2019 OF HILLPALACE POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **SUNIL KUMAR AGED 46 YEARS S/O.KUMARAN, KOOIKATTU VELI, THYCATTUSSERY, CHERTHALA, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.R.SURAJ KUMAR SRI.SUNIL J.CHAKKALACKAL SMT. SALINI N. SMT.A.B.SHYMOL** ## **RESPONDENTS/STATE/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. 2 THE SUB INSPECTOR OF POLICE, HILL PALACE POLICE STATION, THRIPUNITHURA, ERNAKULAM DISTRICT.** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A No.8467 of 2019 2 ## **ALEXANDER THOMAS, J.** ## **=========================== B.A No.8467 of 2019** **===========================** Dated this the 06[th] day of December, 2019 ## **ORDER** The petitioner has now been arrayed as the sole accused in Crime No.1560/2019 of Tripunithura Hill Palace Police Station, Ernakulam, registered for offences punishable under Secs.354A & 506 of the Indian Penal Code and Secs.7, 8, 9m, 10, 11(iii) & 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012. 2. The said crime was initially registered as Crime No.739/2019 of Chottanikkara Police Station for the very same offences, on the basis of the FI Statement given by the minor victim girl aged 11 years on 01.11.2019 at about 6 p.m. (the crime registered on the same day at about 10.20 p.m.), in respect of the alleged incident which happened for the period from 01.01.2016 onwards. The said crime at Chottanikkara Police Station was transferred and re-registered as the instant Crime No.156/2019 of Tripunithura Hill Palace Police Station, as the major incidents are said to have happened within the territorial limits of the Hill Palace Police Station. B.A No.8467 of 2019 3 3. The prosecution case in short is that the date of birth of the minor victim girl is 02.12.2008 and that sometime about two years prior to the submission of the instant FI Statement dated 01.11.2019, the petitioner/accused now aged 46 years, used to frequently visit the victim girl’s residence and that he is a relative of the girl’s mother and that on quite a few occasions, he used to lift her dress and touched her private parts and also shown naked photos of women in his mobile cell and thereby, he has committed the abovesaid offences. It appears that the victim girl and her father belongs to the Scheduled Caste community and now the police after investigation has also added the offence as per Secs.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989 as amended. 4. Sri.P.Vijayabhanu, learned senior counsel instructed by Sri.R.Suraj Kumar, learned counsel appearing for the petitioner/accused would submit that the abovesaid allegations are false and fabricated and further that the allegations are pertaining to events which was admittedly taken place more than two years prior to the instant FI Statement dated 01.11.2019 and therefore, appears to be sometime in the year 2017, whereas the FIS and the crime has been lodged only as late as on 01.11.2019 and the long delay in the lodging of the case has not been even remotely explained by the prosecution agency and therefore, the long and unexplained delay B.A No.8467 of 2019 4 would patently vitiate the impugned criminal proceedings, as it affects the very believability and credibility of the prosecution case. The petitioner would place reliance on various decisions of the Apex Court in cases as in _**Thulia Kali v. The State of Tamil Nadu**_ ]AIR (1973) SC 501], State of _**Andhra Pradesh v. M.Madhusudhan Rao**_ [(2008) 15 SCC 582], etc., wherein this Court has laid down the legal principles regulating the delay in lodging the First Information Reports and that wherein it has been held that delay in registration of the FIR will more often than not, result in embellishments and exaggerations, which are creations of afterthoughts. Delayed report, not only gets bereft of the advantages of spontaneity, but the danger of introduction of coloured versions exaggerated account of incidents or a concocted story as a result of deliberations and consultation also creeps in, which would cast a serious doubt, very veracity of the prosecution story. Therefore, it has been held that it is highly essential that the delay in lodging the FIR should be satisfactorily explained by the prosecution, etc. 5. Further, the learned Public Prosecutor would point out that the offence as per Secs.354A & 506 (ii) of the Indian Penal Code are bailable offences, going by the prescriptions contained in Part-1 of the Schedule appended to the Cr.P.C and further that the said offence as per Secs.354A & B.A No.8467 of 2019 5 506 (ii) of the IPC are also included in the Schedule appended to the SC/ST (Prevention of Atrocities) Act, 1989 as amended. In that regard, the learned senior counsel would point out that even according to the prosecution case, now the added offence arraigned against the petitioner is the one as per Sec.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989 as amended, which reads as follows: “ **3. Punishments for offences of atrocities** (1) xxx xxx xxx (a) xxx xxx xxx xxx xxx xxx (2) **Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-** xxx xxx xxx xxx xxx xxx (va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;” 6. Going by the prescriptions in the said provision, the present offence now alleged against the petitioner, which is for committing an offence which is included in the Schedule appended to SC/ST Act, is also a bailable offence for the simple reason that the main offence in the IPC, viz., Secs.354A & 506 (ii) of the IPC, both are bailable offences. It is pointed out that Sec.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989 would mandate that any person who commence an offence specified in the Schedule, against a person or property, knowing that such person is a B.A No.8467 of 2019 6 member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine. It is pointed out that there are no special provisions in the SC/ST (Prevention of Atrocities) Act, 1989, which deals with the issue as to whether such an offence as per the said Act is bailable or non-bailable and therefore, the provisions contained in Part-II of Schedule I of the Cr.P.C would apply and in which case, as the main offences in the IPC, which are alleged against the petitioner (Secs.354A & 506 (ii) are bailable offences). Therefore, that the criminal culpability for facing the allegation for having committed the offence as per Sec.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989 as amended in this case is also a bailable offence. Hence, it is pointed out that even if it is assumed for a moment that the statutory bar under Sec.18 & 18A of the abovesaid Act would apply, so as to bar the applicability of the plea for anticipatory bail under Sec.438 of the Cr.P.C, then for an accused, who is alleged to have committed the offence as per Secs.354A & 506(ii) of the IPC read with Sec.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989, is legally entitled to secure bail by making application under Sec.438 of the Cr.P.C, as all the said offences are bailable offences. In that connection it is pointed out that none of the B.A No.8467 of 2019 7 offences as per the POCSO Act have been included in the abovesaid Schedule appended to the SC/ST (Prevention of Atrocities) Act, 1989, as can be seen from a mere perusal of the said Schedule to the Act. Further, the learned counsel for the petitioner would point out that it is now well settled that where there are strong suspicions about the very genesis of the crime or the allegations are prima facie appear to be vitiated by extraneous and malafide considerations, etc. If not even a prima facie case of substance involving the offences as per the SC/ST (Prevention of Atrocities) Act, 1989 are disclosed, then the bar under Secs.18 & 18A of the Act will not apply and that this Court has its jurisdiction and competence to consider the plea for anticipatory bail on merits. The petitioner would place reliance on the decision of this Court in _**Jishnu v. State of Kerala**_ [2019 (1) KLT 432]. Accordingly, it is urged that this Court may grant anticipatory bail to the petitioner, subject to any stringent conditions, as may deem fit and appropriate to this Court. 7. The learned Public Prosecutor has seriously opposed the plea for anticipatory bail and has pointed out that the allegations disclosed in this case are serious and merely because of the delay of more than two years, there is no ground to take the view that the allegations are completely false and that the matter requires fine tune investigation and B.A No.8467 of 2019 8 further that statutory bar under Sec.18 & 18A of the SC/ST (Prevention of Atrocities) Act, 1989 as amended would apply in this case. 8. After hearing both sides and after careful evaluation of the facts and circumstances of this case, the following aspects could be taken into account : Both the offences alleging against the petitioner as per the Indian Penal Code (viz., Secs.354A & 506 (ii) of the IPC) are bailable offences and so it goes without saying that the one alleged as per Sec.3(2)(va) of the SC/ST (Prevention of Atrocities) Act, 1989, for having committed the abovesaid IPC offences will also be a bailable offence, going by the prescriptions contained in Part-II of the Schedule I of the Cr.P.C. Further, there is delay of more than two long years in the lodging of the FIS and the registration of the crime in this case. Only from the limited perspective of consideration of anticipatory plea, this Court is constrained to take the view that the issue of delay would loomlarge in this case and this Court cannot brush it aside at least for the limited purpose of consideration of anticipatory bail plea and to do so would be to turn a “Nelson's eye”, to the basic and elementary principles of criminal jurisprudence, which still govern the field. The legal system would require not merely “praxis”, but also “ _theoria_ ” and a fine splendid harmony of both “ _theoria_ ” and “praxis” is B.A No.8467 of 2019 9 required for the sustenance of any organized system like the one in our legal system. 9. Accordingly, this Court is inclined to take the view that in the light of these aspects, the dictum laid down by this Court in the decision as in _**Jishnu's case**_ **(supra)** could be applied in the facts of this case at least only for the purpose of consideration of the plea for anticipatory bail and therefore, this Court would take the view that the statutory bar under Secs.18 & 18A of the SC/ST (Prevention of Atrocities) Act, 1989, as amended would not apply in this case. In other words, this Court will not be denuded of the jurisdiction and competence to consider the plea for grant of anticipatory bail under Sec.438 of the Cr.P.C, after due assessment of the merits of the case. After anxious consideration of all relevant aspects of the case, this Court is inclined to take the view that the petitioner has made out a strong probable case that his custodial interrogation may not be necessary or warranted, for effectuating the fair and smooth conduct of the investigation in this crime. It is made clear that the abovesaid observations made by this Court are only for the limited purpose of anticipatory bail plea and the same will not have any bearing on similar issues that may be raised in other appropriate proceedings in the very same case, including in trial, etc., which will have to be decided B.A No.8467 of 2019 10 independently and untrammeled and uninfluenced by any of the apprehensions and findings made by this Court in this pre-arrest plea proceedings. 10. However, the learned Prosecutor would point out that the petitioner had not so far appeared for interrogation purpose before the Investigating Officer concerned. There is no doubt that the petitioner will have to immediately appear before the Investigating Officer and fully co-operate in the conduct of the investigation process. The learned Prosecutor would also point out that there is a strong possibility of the petitioner abusing his freedom and intimidating and influencing the witnesses, more particularly, the minor victim girl and her family members, as the petitioner is a relative of the victim's mother, etc. Taking note of the said apprehension, it is proposed to order by this Court that the petitioner shall not go anywhere near the residence or educational institution of the minor victim girl, until the conclusion of the trial process, subject to certain exceptions that would be dealt with hereinafter. It is pointed out that the petitioner is now residing at Cherthala and the minor victim girl and her parents are living near Tripunithura and both of them are thus residing within the limits of the said different police stations. Accordingly, the following directions and orders are passed: B.A No.8467 of 2019 11 - (i) The petitioner will immediately personally appear before the Investigating Officer (I.O), in relation to the instant crime, for interrogation purposes, without any further delay, at any rate by 9 a.m. on any day on or before 26.12.2019 or within such time limit that may be extended by the I.O as he deems fit and proper. - (ii)The petitioner will fully co-operate with the Investigating Officer in the above interrogation process. - (iii) After completing the above interrogation process, in case the Investigating Officer arrests the petitioner in relation to the present crime, then the petitioner shall be released on bail on his executing 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 Investigating Officer concerned. However, the grant of bail will be subject to the following conditions: - _(a) The petitioner shall report before the Investigating Officer concerned at any time between 10.a.m. and 1.00 p.m. on every 2[nd] and 4[th] Saturdays for the next three months. Thereafter, the petitioner shall report before the Investigating Officer as and when directed by him._ - _(b) The petitioner shall not involve in any criminal offences of similar nature._ - _(c) The petitioner shall fully co-operate with the investigation._ - _(d) The petitioner shall report before the Investigating Officer as and when required in that connection._ - _(e) The petitioner shall not influence witnesses or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _(f) The petitioner shall not visit or go anywhere near the residence or the educational institution of the minor victim girl._ - _(g) The petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station, where the minor victim girl is residing or studying, until the conclusion of the trial process, except for the limited purpose of reporting before the Investigating Officer in connection with the abovesaid crime or_ B.A No.8467 of 2019 12 _any other crimes or for attending any courts in relation to this case or for contacting his Advocate._ - _(h) However for emergent reasons he may visit there, but only with the prior permission of the Investigating Officer._ 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** vgd