Vidhu S. v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 19[TH] DAY OF JULY 2024 / 28TH ASHADHA, 1946 ``` ``` BAIL APPL.NO.3194 OF 2024 ``` ``` CRIME NO.0131/2024 OF Kottayam East Police Station, Kottayam ``` ``` ------------------ ``` ## **`- PETITIONER/ACCUSED No.1 :`** ``` VIDHU S., AGED 25 YEARS G 11 MALANKARA STAFF QUARTERS, MUTTAMBALAM P.O., KOTTAYAM, PIN - 686 004 ``` ``` BY ADVS. NANDAGOPAL S.KURUP ADITH KIRAN R.S. ``` ## **`- RESPONDENT/RESPONDENT :`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031 ``` ``` BY SMT.SEETHA S., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.3194 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 19th day of July, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.131/2024 of the East Police Station, Kottayam, which is registered against the accused, for allegedly committing the offences punishable under Sections 354, 376(1), 376(2) (f), 376(2)(n) and 376(3) of the Indian Penal Code and Section 4 r/w Section 3(a), Section 6 r/w Sections 5(f) and 5l, Section 10 r/w Sections 9(f) and 9(l) and Section 12 r/w Section 11(v) of the Protection of Children from Sexual . Offences Act, 2019 3. The crux of the prosecution case is that; the accused, who was the tuition teacher of the victim, a 15 year old girl, had committed penetrative sexual assault on the victim at his tuition centre, during the period from June, 2022 to December, 2023 and outraged her modesty. ``` BAIL APPL.NO.3194 OF 2024 ``` ``` -: 3 :- ``` The second accused being a teacher working at the tuition centre, though was aware of the incident, failed to inform the authorities. Thus, the second accused aided the first accused in committing the above offences. 4. Heard; Sri.Nandagopal S. Kurup, the learned counsel for the petitioner and Smt.Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner was the tuition teacher of the victim. The victim used to attend tuition at the petitioner’s tuition centre. It is out of a total misconception of fact that the victim has registered the present case against the petitioner. The petitioner apprehends that the victim has filed the complaint at the instigation of some of his rival competitors. There is no material to substantiate that the petitioner has committed penetrative sexual assault on the victim as alleged by the prosecution. The petitioner's custodial interrogation is not ``` BAIL APPL.NO.3194 OF 2024 ``` ``` -: 4 :- ``` necessary and no recovery is to be effected. Therefore, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the application. She submitted that there are incriminating materials to substantiate that the petitioner has committed penetrative sexual assault on the victim on numerous occasions. The petitioner has also indulged in oral sex with the victim. The medical evidence proves that the victim was subjected to sexual assault. The petitioner's custodial interrogation is necessary and the forensic science examination has to be conducted for the proper and full investigation of the crime. The petitioner has committed a very heinous offence. Therefore, he is not entitled to an order of pre-arrest bail. 7. The father of the victim filed Crl.M.A.No.1/2024 to get himself impleaded in the bail application for the purpose of accepting an affidavit sworn by him, stating that the victim and the petitioner were having a love affair and it was due to sudden grave provocation that his ``` BAIL APPL.NO.3194 OF 2024 ``` ``` -: 5 :- ``` daughter mistakenly initiated criminal proceedings. Now, the dispute between the petitioner and the victim is settled, and the victim has no subsisting grievance. Therefore, the victim has no objection in the application being allowed. 8. I outrightly reject the plea put forth by the father of the victim because he is neither the de facto complainant or a party in the bail application. The victim has not filed any affidavit or has this Court solicited the opinion of the father of the victim. _Prima facie,_ I find that the father of the victim is acting against the interest of his own daughter in a case of such a heinous nature. Therefore, I outirghtly reject the application and the affidavit of the father of the victim. 9. The prosecution allegation against the petitioner is that; the petitioner had committed penetrative sexual assault on the victim between June, 2022 and December, 2023. He also had taken nude pictures of the victim on his mobile phone and blackmailed her continuously. ``` BAIL APPL.NO.3194 OF 2024 ``` ``` -: 6 :- ``` 10. On an analysis of the materials on record, especially the case diary and the medical records of the victim, _prima facie_ I find that there are incriminating materials to substantiate the petitioner's involvement in the crime, which are heinous and grave. 11. In **Srikant Upadhyay** v. **State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier decisions on the point, has held thus : “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxx xxx xxx 24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be ``` BAIL APPL.NO.3194 OF 2024 ``` ``` -: 7 :- ``` very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx”. 12. In **Jai Prakash Singh** v. **State of Bihar and another** , [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be _prima facie_ satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and on _prima facie_ finding that there are materials to substantiate the petitioner's involvement in ``` BAIL APPL.NO.3194 OF 2024 ``` ``` -: 8 :- ``` the crime, the nature, seriousness and gravity of the accusations levelled against the petitioner, the petitioner’s custodial interrogation is necessary and the forensic examinations have to be conducted, I am not satisfied that the petitioner has made out any valid ground to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is not a fit case to grant an order of pre-arrest bail. Resultantly, the bail application is dismissed. **Sd/C.S. DIAS, JUDGE** Jvt/20.7.2024 ``` BAIL APPL.NO.3194 OF 2024 ``` ``` -: 9 :- ``` ## **`APPENDIX OF BAIL APPL.3194/2024`** ## **`PETITIONER ANNEXURES :-`** |**`Annexure A1`**|**`TRUE COPY OF THE FIRST INFORMATION STATEMENT`**| |---|---| ||**`DATED 24.01.2024 GIVEN BY THE VICTIM GIRL IN`**| ||**`CRIME No.131/2024 AT THE KOTTAYAM EAST POLICE`**| ||**`STATION.`**| |**`Annexure A2`**|**`TRUE COPY OF THE FIRST INFORMATION REPORT IN`**| ||**`CRIME No.131/2024 AT THE KOTTAYAM EAST POLICE`**| ||**`STATION.`**| |**`Annexure A3`**|**`TRUE COPY OF THE PHOTOGRAPH OF THE PREGNANCY`**| ||**`KIT AND SCANNING REPORT SENT BY THE VICTIM GIRL`**| ||**`TO THE MOTHER OF THE PETITIONER.`**| |**`Annexure A4`**|**`TRUE COPY OF THE ORDER DATED 01.04.2024 IN CRL`**| ||**`M P No.848/2024 PASSED BY THE DISTRICT SESSIONS`**| ||**`COURT KOTTAYAM.`**|