Sunitha v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5775 OF 2024 ``` ``` CRIME NO.483/2024 OF Palode Police Station, Thiruvananthapuram ``` ``` ----------------- ``` ## **`PETITIONER :-`** ``` SUNITHA, AGED 32 YEARS SREEJA VILASAM HOUSE, ELACHIYAM P.O., THENOOR, THIRUVANANTHAPURAM., PIN - 695 563 ``` ``` BY ADVS. M.R.SASITH R.K.CHIRUTHA NEELANJANA NAIR ANJANA SURESH.E REETHU JACOB NANMA.B.B LIDHIYA GEORGE RIYA KOCHUMMAN ``` ## **`RESPONDENT :-`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031 ``` ``` BY SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BAIL APPL. NO. 5775 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** **Dated this the 29th day of July, 2024** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS', for short), by the second accused in Crime No.483/2024 of the Palode Police Station, Thiruvananthapuram, which is registered against the accused, for allegedly committing the offences punishable under Sections 354(A)(1)(i), 376, 376(2)(f), 376(2)(i), 376(2)(n) r/w Section 34 of the Indian Penal Code and Section 4 r/w Section 3(a), Section 6 r/w Sections 5(l), 5(n), 5(p), Section 8 r/w Section 7, Section 10 r/w Sections 9(l), 9(m), 9(n), 9(p), Section 17 r/w Section 16 of the Protection of Children from Sexual Offences Act, 2012 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. The petitioner was arrested and remanded to on judicial custody 14.05.2024. ``` BAIL APPL. NO. 5775 OF 2024 ``` ``` -: 3 :- ``` 2. The crux of the prosecution case is that; the first accused, who is the step father of the victim, a 16 year old girl, had committed rape and penetrative sexual assault on the victim on various dates and also outraged her modesty. The second accused, who is the present wife of the first accused and the biological mother of the victim, despite knowing about the offences committed by the first accused, did not report the same to any authority or object to the offences committed by the first accused. Thus, the second accused has also committed the above offences. 3. Heard; Sri.M.R.Sasith, the learned counsel appearing for the petitioner and Smt.Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. The petitioner is the biological mother of the victim. It was the first accused/step father of the victim, who allegedly committed ``` BAIL APPL. NO. 5775 OF 2024 ``` ``` -: 4 :- ``` rape as well as penetrative sexual assault on the victim. Therefore, by no stretch of imagination can any of the offences under the Indian Penal Code and POCSO Act be attributed against the petitioner. At the worst, only the offence under Section 75 of the JJ Act can be alleged against the petitioner. In any given case, the petitioner has been in judicial custody for the last 77 days, the investigation in the case, as against the petitioner, is practically complete and the medical examinations have been conducted. Furthermore, there is no person to look after the victim, who is now an orphan. Therefore, the petitioner may be enlarged on bail. 5. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that there are materials to substantiate the petitioner's involvement in the crime. The petitioner had deliberately not objected to first accused's relationship with the victim and had not reported the ``` BAIL APPL. NO. 5775 OF 2024 ``` ``` -: 5 :- ``` offences committed by him. Therefore, the petitioner also has a complicity in the crime. Hence, the application may be dismissed. 6. The prosecution case against the petitioner is that; despite knowing that the first accused had committed rape, penetrative sexual assault and outraged the modesty of the victim, the petitioner did not object to the first accused committing the above offences or report the same to the statutory authorities. Thus, the accused has committed the above offences. The fact remains that the allegation against the petitioner is only pertaining to not objecting to the first accused committing the above offences and in not reporting about the same to the statutory authorities. The fact remains that the petitioner has been in judicial custody for the last 77 days, the investigation in the case, as against the petitioner, is practically complete, the petitioner is the biological mother of the victim, who is a 16 year old girl, and the final report ``` BAIL APPL. NO. 5775 OF 2024 ``` ``` -: 6 :- ``` has been filed, I am of the firm view that the petitioner's further detention is unnecessary. Hence, I am inclined to allow the application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on her executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions :- - (i) The petitioner shall appear before the Investigating Officer on every third Saturday between 9 a.m. and 11 a.m till the conclusion of the trial in Crime No.483/2024; - (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; ``` BAIL APPL. NO. 5775 OF 2024 ``` ``` -: 7 :- ``` - (iii) The petitioner shall not commit any offence while she is on bail; - (iv) The petitioner shall surrender her passport, if any, before the court below at the time of execution of the bond. If she has no passport, she shall file an affidavit to the effect before the court below on the date of execution of the bond; - (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (vi) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. - (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, ``` BAIL APPL. NO. 5775 OF 2024 ``` ``` -: 8 :- ``` given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal** v. **State (NCT of Delhi) and another** [2020 (1) KHC 663]. (viii) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by the competent Courts. **Sd/C.S. DIAS, JUDGE** Jvt/29.7.2024