Vijayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 4TH DAY OF NOVEMBER 2014/13TH KARTHIKA, 1936** **Bail Appl..No. 7802 of 2014 ()** **------------------------------CRIME NO. 294/2014 OF KUTHIYATHODE POLICE STATION , ALAPPUZHA DISTRICT** **--------------------------** ## **PETITIONER/ACCUSED:** **--------------------------------------** **VIJAYAN, AGED 62 YEARS, S/O.KALIYAN, RESIDING AT PUTHIYANIKART HOUSE, WARD NO.22, THURAVOOR PANCHAYATH, CHERTHALA, ALAPPUZHA DISTRICT.** **BY ADVS.SRI.M.M.NIAS SRI.AJOY VENU** **RESPONDENT/STATE:** **--------------------------------------** **STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KUTHIYATHODE POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. R.REMA** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **ALEXANDER THOMAS, J. ================== B.A.No.7802 of 2014** ## **================= Dated this the 4[th] day of November, 2014** ## **ORDER** Petitioner is the sole accused in Crime No.294/2014 of Kuthiyathode Police Station, Alappuzha District, for offences registered under Sections 7,8,9(i), (n),(p) read with Sections 10 and 11 (i) read with Section 12 of the Protection of Children from Sexual Offences Act. The version of the prosecution is that for the last four years, the accused, with sexual intent, had sexually assaulted the minor victim girl of aged 13 years by touching her private parts(breast and abdomen) and that the accused is relative and neighbour of the victim's family and that he had committed the sexual assault, since minor has been studying in 4[th] Std and she is now having school education at the level of 8[th] std. The complaint regarding the same was filed before the Child Welfare Committee, Alappuzha, which was forwarded to the B.A. No7802/2014 2 Kuthiyathode Police Station on 24/3/2014 and thereby, the instant crime No.294/2014 was registered by the Police and that the petitioner was arrested on 24/8/2014 and produced before the Magistrate concerned, whereby he was remanded on 25/8/2014. Sri.M.M.Nias, the learned counsel for the petitioner would urge strongly that all the allegations against the petitioner are falsely foisted and he is innocent of the allegations and that the dispute arose in connection with demarcation of the property boundary between the victim's father and the petitioner, which ended in clashes and abusive languages and when the petitioner decided to measure his property through village surveyor, the victim's father, despite request, had refused to co-operate with the measurement and that the present allegation are triggered to settle his scores arising out of the boundary/property disputes. There are allegations that the accused had massaged the abdominal part of the victim and that he had showed the nudity of his body several times in the recent B.A. No7802/2014 3 past to the victim. All these allegations are false and untenable, is the submission of the learned counsel for the petitioner. The application filed by the petitioner seeking regular bail was rejected by this Court vide order dated 15/10/2014 in B.A. NO.7321/2014. 2 Sri.M.M. Nias learned counsel for the petitioner would submit that more than 70 days have been lapsed after the remand of the petitioner and, at any rate, further custodial detention of the petitioner is not warranted and the benefit of regular bail may be granted to the petitioner in the interest of justice and that the petitioner is prepared to comply with any stringent conditions that may be imposed by this court. 3. The learned Public Prosecutor would submit about the details of the crime and the investigation. He would also submit that investigation is not fully completed and that in case this Court is inclined to grant regular bail to the petitioner on the ground that the petitioner is under judicial B.A. No7802/2014 4 custody for the last more than 70 days, then stringent conditions may be incorporated in the order so that the petitioner does not get any possibility of access to the victim, otherwise he is likely to threaten or intimidate the victim or other witnesses concerned or even he is likely to indulge in the same kind of activities. 4. Having heard the submissions of the learned counsel for the petitioner and the learned Public Prosecutor and on evaluation of the totality of the facts and circumstances of this case, this Court is inclined to grant a bail to the petitioner, but with a stringent condition that the petitioner shall not reside or enter into the limit of Alappuzha Revenue District, within whose area minor victim is residing, so as to prevent any possibility of influencing or intimidating the victim girl. 5. The learned counsel for the petitioner would fairly submit that the petitioner undertakes that he would not enter the territorial limits of Alappuzha Revenue District B.A. No7802/2014 5 and obey the terms of the order in that regard that may be passed by this Court. 6. Accordingly, it is ordered that the petitioner shall be released on bail ( if he is not to be detained in connection with any other crime) on his executing a bond for Rs.35,000/-(Rupees Thirty Five Thousand only) with two solvent sureties for the like amount to the satisfaction of the Court below concerned and on subject to the following conditions; _i). Petitioner shall not enter or reside within the territorial limits of the Alappuzha Revenue District within whose area the de facto complainant is residing until the conclusion of the trial except for the purpose of compliance with the other conditions in the order or for meeting the requirements of any other case in the court in the Alappuzha District._ _ii). The Investigating Officer shall on a fortnightly basis for a period of six months from now depute a woman_ 6 B.A. No7802/2014 _police constable (not in uniform) to the residence of the minor victim so as to ascertain from her and her family members as to whether the petitioner is committing any threatening or disturbing action to them. If the Investigating Officer, after conducting due enquiries, is satisfied with the correctness of such allegation that may be raised in that regard, then he shall file an appropriate report and necessary application before this Court for cancellation of the bail granted to the petitioner. It is further ordered that after such assessment, if the investigating officer feels that the practice of deputing a woman police constable need not be continued, he is at liberty to do so. But, if he finds that this practice should be continued for a further period, he is at liberty to do so also._ _iii) The petitioner shall surrender his passport, if any, before the jurisdictional Magistrate concerned within three days from the execution of the bail bond before the_ B.A. No7802/2014 7 _Investigating Officer and if he is not a holder of passport, he shall file an affidavit to that effect in the said court. If the petitioner requires his passport in connection with his travel abroad, then he shall approach the court concerned for the release of the same and for necessary permission in that regard. In case such an application is filed, the trial court or the jurisdictional Magistrate concerned, as the case may be, is free to consider the same on merits and to pass appropriate orders thereon, taking necessary guidance from the principles laid down in the decision of this Court in the case_ _**Asok Kumar v State of Kerala,** (2009(2) KLT 712), notwithstanding the aforementioned conditions imposed by this Court._ _iv) The petitioner shall not involve in any criminal offence of similar nature._ _v) The petitioner shall not influence the witnesses or_ B.A. No7802/2014 8 _shall not tamper or attempt to tamper evidence in any manner whatsoever._ _vi) The petitioner shall fully co-operate with the investigation and report before the Investigating Officer as and when required by him._ If the petitioner fails to comply with any of the aforementioned conditions, the bail granted to him is liable to be cancelled. The bail application stands allowed. Sd/- **ALEXANDER THOMAS, JUDGE.** _Dpk_ _/True copy/ PS to Judge._ B.A. No7802/2014 9 B.A. No7802/2014 10