Venkiteshan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** **BAIL APPL.NO.8617 OF 2019** **CRIME NO.323/2019 OF PUDUNAGARAM POLICE STATION, PALAKKAD** **PETITIONER/ACCUSED:** **VENKITESHAN, AGED 58 YEARS, S/O. SIVASANKARAN PATHIYAR, MULLANKADU, CHIRANKADU, PALATHULLY, PERUVEMBA POST, PALAKKAD DISTRICT.** **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENTS/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.11.2019, ALONG WITH BAIL APPL.NO.8614/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 29TH DAY OF NOVEMBER 2019 / 8TH AGRAHAYANA, 1941** **BAIL APPL.NO.8614 OF 2019** **CRIME NO.324/2019 OF PUDUNAGARAM POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED:** **VENKITESHAN, AGED 58 YEARS, S/O. SIVASANKARAN PATHIYAR, MULLANKADU, CHIRANKADU, PALATHULLY, PERUVEMBA POST, PALAKKAD DISTRICT.** **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENTS/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.11.2019, ALONG WITH BAIL APPL.NO.8617/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ---------------------------------------B.A. Nos. 8617 & 8614 of 2019 ---------------------------------------Dated this the 29[th] day of November, 2019 ## O R D E R As the sole applicant in these two bail applications have been arrayed as the sole accused in two crimes and the facts in these cases are in a way inter related, and as the victim boys in these two cases are siblings, and the offences alleged are the same, etc. these cases are disposed of on the basis of this common order. 2. The sole applicant in B.A. No. 8617/2019 who is the sole applicant in B.A. No. 8614/2019 has been arrayed as the sole accused in the instant Crime No.323/2019 of Pudunagaram Police Station and Crime No.324/2019 of Pudunagaram Police Station respectively for the offences punishable under Secs.9(l) and (m) r/w Sec.10 and Secs.11(i) and (iii) r/w Sec.12 of the Protection of Children from Sexual Offences Act, 2012. It appears that the minor victim boy aged 8 years in Crime No.323/2019 and minor victim boy aged 12 years in Crime No.324/2019 are brothers and they are living with their parents in the immediate vicinity of the B.A. Nos. 8617 & 8614 of 2019 ..4.. petitioner's residence. Further, the petitioner aged 58 years is a widower and is staying alone, and he has no issues and due to the understanding arrived at with the parents, the abovesaid children especially the younger one used to quite often sleep in the petitioner's residence to give him some company taking into account his old age and ailments. 3. The prosecution case is that, for the period from the time when the victim boy aged 8 years has been studying in I[st ] Std up to 14.10.2019 and for the period from the elder child has been studying from V[th] Std up to 14.10.2019, the petitioner used to frequently sexually assault and harass the boys by showing them obscene photos and videos in the laptop and tab, and also by catching hold of the private part of the boys and further asking the boys to hold the private part of the accused, etc, and thus the petitioner has committed the abovesaid offences. The period of occurrence of these two crimes are from June, 2018 up to 14.10.2019. The petitioner has been arrested in respect of the case in B.A. No.8617/2019 (arising out of Crime No.323/2019 of Pudunagaram Police Station) is on 15.10.2019 and after his remand has been under detention since then. The arrest of the B.A. Nos. 8617 & 8614 of 2019 ..5.. petitioner in relation to the case in B.A. No.8614/2019 (arising out of Crime No.324/2019 of Pudunagaram Police Station) has been formally recorded on 16.10.2019 and after his remand, has been under detention since then. 4. The contentions raised by the petitioner in these two cases are to the following effect. The petitioner is innocent of the offence alleged against him. The petitioner was an employee working as Private Secretary to CMD of Hindustan Photo Films (HPF), Ootty, a Central Government Undertaking and he took voluntary retirement from service in the year 2015. He took VRS in the year 2015 after the death of his wife in the year 2014. he have no issues in the wedlock with his wife. The petitioner hails from Mankara at Palakkad. After getting VRS, the petitioner bought a house where the alleged incident had taken place. The petitioner was very friendly to the kids, who were residing in the locality. He used to take tuition as service irrespective of the age of children. One person by name, Sri.Sanjayan, who is the local SNDP Leader had an eye in the house that was purchased by the petitioner. The house purchased by the petitioner was not sold for a long period and the same was purchased by the petitioner. Sri.Sanjayan, made B.A. Nos. 8617 & 8614 of 2019 ..6.. several attempts to purchase the said house nut nothing went fruitful. So, he had some grudge towards the petitioner. So, he tried to create unnecessary issues with the petitioner several times. Whenever the petitioner was seen in the company of children, the abovesaid person threatened him stating that his is not for his good and soon he will be implicated in a POCSO case. The parents of the victim boy also belong to the same community of the above said Sri.Sanjayan. Now the construction work of the house of the victim is going on. It is understood that Sri.Sanjayan is financially helping them for the construction of the house. So ti is to be understood that there is some foul play and chances for fabricating a wrong case against the petitioner. There is long delay in registering the FIR. Even though the incidents are allegedly to have happened for past one year, the same is now reported only after conducting a counselling by the Child Line. The victim child used to sleep in the house of the petitioner for more than past one year and no such acts were revealed to his parents or any other person till the date the Child Line has conducted the counseling. The victim does not have a case that the petitioner threatened him from saying the alleged acts to any other person. This has also to be seriously B.A. Nos. 8617 & 8614 of 2019 ..7.. scrutinized. The veracity of the complaint and the involvement of the Child Line is suspicious. The petitioner strongly believes that there is a strong hand of the above mentioned Sri.Sanjayan in registering the abovesaid case. The petitioner is in custody since 16.10.2019/15.10.2019. Any further custody of the petitioner is not at all required. 5. The counsel for the petitioner would point out that the alleged incidents are said to have occurred in June, 2018 and thereafter, and for the first time the case has been lodged only as late as on 15.10.2019 and the long delay of about more than one year in that regard has not been even remotely explained in any manner by the prosecution, and the said long and unexplained delay would vitiate the impugned criminal proceedings as it would affects the very credibility and believability of the prosecution story. 6. The petitioner would place reliance on various decisions of the Apex Court and various High Courts including those as per the cases as in _**Thulia Kali v. The State of Tamil Nadu [AIR 1973 SC 501], State of Andra Pradesh v. M.Madusudhan Rao [(2008) 15 SCC 582]**_ etc, wherein the B.A. Nos. 8617 & 8614 of 2019 ..8.. Apex Court has dealt with the legal principles and significance of delay in lodging the FIR and has been held that the delay in lodging of FIR will more often than not, result in embellishments and exaggerations which is a creation of afterthought. Delayed report, not only gets bereft of the advantages of spontaneity, but the danger of introduction of coloured version, exaggerated account of incident or a concocted story as a result of deliberations and consultations also creeps in, casting a serious doubt on its veracity. Therefore, it has been held that it is highly essential that delay in loding the FIR should be satisfactorily explained by the prosecution. Resultantly, when the substratum of evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety, etc. 7. It is pointed out that the allegations raised in these two cases are almost similarly worded. Further the petitioner would make allegations that it is on account of the influence of a local community organisation leader that the petitioner has been falsely implicated as aforestated. Lastly, it is urged by the petitioner's counsel that, as the petitioner has already suffered detention in this case for the last 44 days and in view of the elderly age of the B.A. Nos. 8617 & 8614 of 2019 **==> picture [19 x 8] intentionally omitted <==** petitioner and his ailments, etc, that this Court may order to release him on regular bail as his continued incarceration may not be necessary, etc. 8. The learned Prosecutor has opposed the plea for regular bail and has pointed out that investigation is pending and that there is strong possibility of the petitioner intimidating and influencing the witnesses, more particularly the victim boys, etc. 9. After hearing both sides and after careful evaluation of the facts and circumstances of the case, and taking into account the long and unexplained delay in lodging the cases, as well as some of the aspects highlighted herein above, and also taking into account the fact that the petitioner has already suffered detention in these cases for the last 41 days, and also taking into account his ailments, and also taking into account the nature of the allegations in these cases, etc, this Court is inclined to take the view that the further incarceration of the petitioner could be avoided and he could be released on regular bail in these two cases, subject to stringent conditions. However, taking note of the apprehension raised by the prosecution, it is ordered as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the B.A. Nos. 8617 & 8614 of 2019 ..10.. Police Station where the minor victim boys are residing or studying until the completion of investigation process in these two cases. 10. Accordingly it is ordered that the petitioner shall be released on bail in these two cases on his separately executing bond for Rs.40,000/- in each of these cases and on his furnishing separately two solvent sureties for the like sum in each of these cases, both to the satisfaction of the competent court below concerned. However the grant of bail will be subject to the following conditions:- - _i. The petitioner shall fully co-operate with the Investigating Officer in the conduct of investigation process._ - _ii. The petitioner shall report before the Investigating Officer as and when required in that connection._ - _iii. The petitioner shall not intimidate or attempt to influence the victims, witnesses; nor shall he tamper with the evidence._ - _iv. The petitioner shall not commit any offence while on bail._ - _v. The petitioner shall not go anywhere near to the educational institution or residence of the minor victim boys._ - _vi. The petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station where the minor victim boys are residing or studying, until the conclusion of investigation process in_ B.A. Nos. 8617 & 8614 of 2019 ..11.. _these cases, except for the limited purpose of reporting before the Investigating Officer concerned in these crimes, or for attending to the Court in relation to these cases or any other case or for contacting his lawyer/advocate concerned._ _vii.However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ 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 if required, and pass appropriate orders in accordance with law. With these observations and directions, the above Bail Applications will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG