Vinod v. State of Kerala

1 B.A. Nos. 5363 and 5367 of 2024 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946 BAIL APPL. NO. 5363 OF 2024** **CRIME NO.725/2024 OF KARUNAGAPALLY POLICE STATION, KOLLAM AGAINST THE ORDER DATED 15.06.2024 IN Crl.MC NO.1157 OF 2024 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-I, KOLLAM PETITIONER/ACCUSED:** **VINOD, AGED 46 YEARS S/O RAMAKRISHNAN ACHARY, VADAKKEKKARA PUTHENVEEDU, CHERUVAKKAL, ELAMADU VILLAGE, KOTTARAKKARA, ELAMDU P.O, KOLLAM, PIN - 691533 BY ADVS. SRI.V.RENJITH KUMAR SRI.S.JAYAKUMAR (PANAMBIL) SRI.MOHAPRASEED MOHAN SRI.ADARSH SANJEEVAN** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 INSPECTOR OF POLICE, KARUNAGAPPALLY POLICE STATION, KARUNAGAPPALLY P.O, KOLLAM, PIN - 690518** ## **BY SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.07.2024, ALONG WITH B.A. NO.5367/2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 B.A. Nos. 5363 and 5367 of 2024 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946** **BAIL APPL. NO. 5367 OF 2024** **CRIME NO.726/2024 OF KARUNAGAPALLY POLICE STATION, KOLLAM AGAINST THE ORDER DATED 15.06.2024 IN CRL.MC NO.1155 OF 2024 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-I, KOLLAM** ## **PETITIONER/ACCUSED:** **VINOD, AGED 46 YEARS S/O RAMAKRISHNAN ACHARY, VADAKKEKARA PUTHEN VEEDU, CHERUVAKKAL, ELAMADU VILLAGE, KOTTARAKKARA, ELAMADU P.O, KOLLAM, PIN - 691533 BY ADVS. SRI.V.RENJITH KUMAR SRI.S.JAYAKUMAR (PANAMBIL) SRI.MOHAPRASEED MOHAN SRI.ADARSH SANJEEVAN** ## **RESPONDENTS:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 INSPECTOR OF POLICE, KARUNAGAPPALLY POLICE STATION, KARUNAGAPPALLY P.O, KOLLAM, PIN - 690518** ## **BY SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.07.2024, ALONG WITH B.A.NO.5363/2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 3 B.A. Nos. 5363 and 5367 of 2024 ## **C.S.DIAS,J** **=================================== Bail Application Nos. 5363 and 5367 of 2024 --------------------------------------------------------------** Dated this the 25[th] day of July, 2024 ## **COMMON ORDER** The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime Nos.725/2024 and 726/2024 of the Karunagapally Police Station, Kollam, which are registered against him for allegedly committing the offences punishable under Section 354 A of the Indian Penal Code, 1860 and Section 8 r/w Section 7, Section 10 r/w Section 9(m) and Section 12 r/w Section 11(i) of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). The petitioner was arrested and remanded to judicial custody in both the crimes on 21.05.2024. 4 B.A. Nos. 5363 and 5367 of 2024 2. In B.A.No.5363/2024, which arises out of Crime No.725/2024, it is alleged that the petitioner, who is the father of the victim, a girl aged 17 years, had committed sexual assault on the victim, when she was 9 years of age. It is also alleged that on one day, the petitioner had indecently masturbated in the presence of the victim and on the day of Vishu of the year 2024, he had committed sexual assault on the victim. 3. In B.A.No.5367/2024, which arises out of the Crime No.726/2024, it is alleged that the petitioner, who is the father of the victim, a girl aged 15 years, had while the victim was studying in the 3[rd] standard and on successive days while the victim was in the 8[th] and 9[th] standards, had committed sexual assault on the victim by pressing on her body. Since, the applications are filed by the same person, they are consolidated, jointly heard and disposed of by this common order. 5 B.A. Nos. 5363 and 5367 of 2024 4. Heard; Sri.Renjith Kumar V, the learned counsel appearing for the petitioner and Smt.Neema.T.V and Smt.Seetha S, the learned Senior Public Prosecutors. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him in both the crimes. A reading of the First Information Reports in the two crimes would clearly reveal the falsity of the accusations. Both the victims in the two crimes are the daughters of the petitioner, who are presently aged 17 and 15 years. The marital relationship between the petitioner and his wife is strained. The couple is living separately and the children are with the wife. It is only for the purpose of pressurizing the petitioner to yield to the demands of his wife that she has made his two daughters make the false accusations against him. His daughters are now aged 17 and 15 years. The alleged incidents allegedly happened more than a decade back. Even though, the petitioner had filed an application for prearrest bail before the Court of Session, Kollam, the 6 B.A. Nos. 5363 and 5367 of 2024 Investigating Officer has stated that there was no crime registered against the petitioner. Consequently, by Annexure 1 order, the application was closed by directing the Investigating Officer to issue a notice under Section 41A Cr.P.C to the petitioner. But, without complying with the directions of the court below, the Investigating Officer arrested the petitioner on the following day. This by itself shows that the Investigating Officer is hellbent to harass and vex the petitioner, which is obviously at the instigation of his estranged wife. The petitioner has been in judicial custody for the last 66 days. But, the investigation in the cases is not complete and the final reports have not been laid. Hence, the petitioner is entitled to statutory bail. Therefore, the applications may be allowed. 6. The learned Public Prosecutors opposed the applications. They submitted that there are incriminating materials to substantiate the petitioner’s involvement in the crimes. Since, the victims are daughters of the petitioner, there is every likelihood of him prevailing and intimidating 7 B.A. Nos. 5363 and 5367 of 2024 them and tampering with the evidence, which would be prejudicial to the prosecution. Hence, the applications may be dismissed. 7. The prosecution allegation in both the crimes are that, the petitioner had committed sexual assault on his two daughters and outraged their modesty. Indisputably, the marital relationship between the petitioner and his wife is strained. A reading of the First Information Report in the two crimes would show that the alleged incidents took place nearly a decade back and the same was reported only recently. Nonetheless, these are matters that has to be investigated and ultimately decided at the time of the trial. I do not want to express anything on the merits of the matter. The fact remains that the petitioner has been in judicial custody for the last 66 days, investigation in the cases is not yet complete, the offences alleged against the petitioner are punishable for less than ten years and the final reports have not been laid. 8 B.A. Nos. 5363 and 5367 of 2024 ## 8. Subsections (1) and (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:- “167. Procedure when investigation cannot be completed in twenty-four hours.— (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: 9 B.A. Nos. 5363 and 5367 of 2024 Provided that— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]” 9. A three-Judge Bench of the Honourable Supreme Court in **Uday Mohanlal Acharya v. State of Maharashtra** [(2001) 5 SCC 453], reiterated the legal 10 B.A. Nos. 5363 and 5367 of 2024 proposition in **Sanjay Dutt v.State through C.B.I., Bombay** (supra). In paragraph 13 (3) it was opined thus: "13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added) 10. In the instant case, the petitioner has been in judicial custody in both the crimes for the last 66 days, the investigation in the cases is not complete, all the offences alleged against the petitioner are punishable for a period of less than ten years, and the Investigating Officer has not laid the final reports till date. Therefore, I am satisfied that the petitioner is entitled to be released on statutory bail in both the crimes, since, it is his indefeasible right under Section 167(2) of the Code. Hence, I allow the bail applications. 11 B.A. Nos. 5363 and 5367 of 2024 In the result, the applications are allowed, by directing the petitioner to be released on bail in both the crimes on him 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 Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement or threat to the victims or their witnesses or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; 12 B.A. Nos. 5363 and 5367 of 2024 (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below in Crime No.725/2024 at the time of execution of the bond. If he has no passport, he 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 moved and entertained by the court below. (vii)Needless to mention, it would be well within the powers of the Investigating Officer to 13 B.A. Nos. 5363 and 5367 of 2024 investigate the matter and, if necessary, to effect recoveries on the information, if any, 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 competent Courts. Sd/- **C.S.DIAS, JUDGE** NAB 14 B.A. Nos. 5363 and 5367 of 2024