Vijayakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** ## **BAIL APPL.NO.5895 OF 2019** **CRIME NO.150/2019 OF PARASSALA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/1ST ACCUSED:** **VIJAYAKUMAR, AGED 21 YEARS, S/O.SATHYANESHAN, SHANKARAN MURI PUTHEN VEEDU, KEEZHKOLLA, VATTAVILA.P.O, THIRUVANANTHAPURAM.** **BY ADVS. SRI.V.G.ARUN (K/795/2004), SMT.V.JAYA RAGI, SMT.INDULEKHA JOSEPH, SRI.NEERAJ NARAYAN** **RESPONDENT:** **STATE OF KERALA REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------B.A. No. 5895 of 2019 ------------------------------------Dated this the 18[th] day of October, 2019 ## O R D E R The subject crime in this case is Crime No.150/2019 of Parassala Police Station, Thiruvananthapuram, which was initially registered under Sec.174 of the Cr.P.C. on 31.1.2019 at about 2.30 pm in respect of the unnatural death/suicide committed by the minor victim girl involved in this case on the same day at 12.3o noon. The police after investigation has altered the offences to those as per Sec.306 of the IPC and Sec.11 of the POCSO Act, which is punishable under Sec.12 thereof. 2. The prosecution case in short as far as the abovesaid offences are concerned is that, the minor victim girl aged 15 years was initially having an affair with the petitioner herein (A1) now aged 21 years, and that he had given a mobile and sim card to her for use, and that initially the minor victim girl and her parents were living in a rented premise in the immediate neighbourhood of the petitioner (A1) and thereafter the minor victim girl found that she cannot carry on the affair with the petitioner any longer, B.A. No. 5895 /2019 ..3.. and still the petitioner used to go after her and trouble her in many ways, and her parents were also forced to intervene so as to tell A1 to desist from the affair any longer, and since it was in vain, the minor girl and her parents were constrained to shift their residence to a different area. Even thereafter the petitioner (A1) troubled her by going after her and the minor victim girl's father was constrained to go the petitioner's house and to request his parents to prevail upon the petitioner to desist these activities, and thereupon, the petitioner assured that in case the minor victim girl directly tells him on his face that she is no longer interested in him, he would stop the affair. Thereupon the minor victim girl's father graciously invited the petitioner (A1) to his house along with a friend, and the victim girl's parents and the minor victim girl interacted with the petitioner and the minor victim girl openly told the petitioner in the presence of her parents that she is not in manner interested with him and to stop troubling her, etc. Further it appears that, in the meanwhile the minor victim girl started having affair with another boy (A2) and this was to the strong dislike of the petitioner (A1). So also it appears that, A2 used to B.A. No. 5895 /2019 ..4.. frequently sent obscene messages to the minor victim girl's phone. Further that on 31.1.2019 (the day on which the minor victim girl ultimately committed suicide), the petitioner had contacted the minor victim girl's brother and told him that he want to talk directly with the minor victim girl and the brother handed over the phone to the minor victim girl and the petitioner (A1) had talked with the minor victim girl, and it is some time after she had received the abovesaid telephone call that the minor victim girl has committed suicide in her house by hanging on that day (31.1.2019) at about 12.30 noon. 3. According to the investigating agency, there are reasons to believe that the petitioner has threatened the minor victim girl on 31.1.2019. Further it is stated that the mother of the minor victim girl has given statement to the police that on the previous day of death (30.1.2019), when the minor victim girl was standing in the bus stop, the petitioner (A1) had come there in a motor cycle and stopped near her and threatened her in high abusive tones. Further the police has reasons to believe that the petitioner (A1) had made some serious threats on 31.1.2019 when he had B.A. No. 5895 /2019 ..5.. made the last telephonic call with the minor victim girl, and also the frequent harassments earlier meted out to her by the petitioner, as well as the harassments she had to suffer from the hands of A2 on account the obscene and threatening messages sent by A2 that has instigated the minor victim girl to commit suicide, etc. 4. The learned Prosecutor would point out that A2 has already been arrested and remanded. Further that,the custodial interrogation of the petitioner is highly necessary for effectuating the smooth and fair conduct of investigation in this case. 5. The counsel for the petitioner would point out that the prosecution has not been able get any materials so as to connect the petitioner with the offence as per Sec.306 of the IPC and that none of the vital ingredients of the offence of abetment as per Sec.107 of the IPC, and the offence of abetment to commit suicide as per Sec.306 of the IPC are made out in the instant case. Hence it is urged by the petitioner's counsel that the custodial interrogation of the petitioner is not necessary, and that the petitioner would fully co-operate with the investigating agency in the conduct of B.A. No. 5895 /2019 ..6.. investigation, and that this court may grant him anticipatory bail subject to any stringent conditions. In that regard the learned counsel appearing for the petitioner has also relied on various rulings of the Apex Court and this Court which has dealt with the vital parameters and legal ingredients to be satisfied in respect of the offences as per Sec.107 and Sec.306 of the IPC in the decisions as in _**Sanju Alias Sanjay Singh Sengar v. State of M.P. [2002 SCC (Cri) 1141 = (2002) 5 SCC 371], Krishnadas P. (Dr.) (Adv.) v. State of Kerala and Another [2017 (2) KLT 579], Gurcharan Singh v. State of Punjab [2016 (12) SCALE 414], Harikrishnan and Another v. State of Kerala and Another [2019 (3) KHC 437] and M.Arjunan v. State, Rep. By Inspector of Police [2019 (3) SCC 315].**_ 6. Per contra, the learned Prosecutor would point out that the abovesaid factual aspects gathered in the investigation could clearly point out that the petitioner was repeatedly harassing the girl on very many occasions, and even the minor victim girl's parents were forced to shift their rented residence from the B.A. No. 5895 /2019 ..7.. immediate neighbourhood of the petitioner, and even thereafter he continued, and the girl's father had to even the petitioner's parents to intervene and the minor victim girl's father had graciously invited the petitioner to his house so to convince him that the girl is no longer interested in him, and even thereafter the petitioner had threatened the minor victim girl on 31.1.2019 as per the information gathered from her brother that, the telephone call made by the petitioner on 31.1.2019 is also highly relevant and crucial, and facts in that regard could be gathered only after the custodial interrogation of the petitioner. Further, the abovesaid facts would clearly the offence as per Clause iv of Sec.11 of the POCSO Act, which reads about stalking which is a non bailable offence. 7. Taking into account the cumulative aspects this Court may not order to grant anticipatory bail as otherwise it would detrimentally affect the proper and effective conduct of investigation in this case. Further that, A2 has already been arrested and remanded, and it does not stand for any reasonable logic, that any lenient or different treatment should be afforded to B.A. No. 5895 /2019 ..8.. the petitioner (A1). After hearing both sides and after careful evaluation of the facts and circumstances of the case, this Court is not in a position to accept the argument of the petitioner, that the investigating agency has not been able to collect any materials so as to proceed further against the petitioner. Further, in view of the abovesaid factual aspects narrated herein above, this Court is not now presented with any objective materials and facts and circumstances so as to over rule the considered stand of the Investigating Officer that the custodial interrogation of the petitioner is necessary. In the light of these aspects, this Court is thus of the view that this is not a fit case in the matter of exercise of extra ordinary discretion in the matter of grant of anticipatory bail. The application fails and the same will stand dismissed. With these observations the above Bail Application will stand dismissed. Sd/ALEXANDER THOMAS, JUDGE MMG