Vipinlal v. State of Kerala

# **`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. 1780 OF 2024 ``` ``` CRIME NO.270/2023 OF ALUVA EAST POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER IN SC NO.908 OF 2023 OF FAST TRACK SPECIAL COURT, ALUVA ``` ## **`PETITIONER/ACCUSED:`** ``` VIPINLAL, AGED 40 YEARS S/O. GOPALAKRISHNAN, R/O. ANNATTUPADATHU HOUSE, NEAR MACHAMTHURUTHU VALIYARA BHAGAVATHI TEMPLE, MATHAMTHURUTH KARA, VADAKKEKKARA VILLAGE, ERNAKULAM, PIN - 683522 ``` ``` BY ADVS. NAVANEETH.N.NATH GAUTHAM KRISHNA E.J. K.S.STEJO K.S.BINOY ``` ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` PUBLIC PROSECUTOR SMT. MAYA M.N. ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` **B.A. No.1780 of 2024** ``` 2 ``` ## **Dated this the 25[th ] day of July, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.270/2023 of the Aluva East Police Station, Ernakulam, which is registered against him for allegedly committing the offences punishable under Sections 109, 379, 363, 328, 323 and 377 of the Indian Penal Code and Sections 77, 78, and 87 of the Juvenile Justice (Care and Protection of Children) Act and Section 22(a) r/w Section 29 of the Narcotics Drugs and Psychotropic Substances Act and Section 4(2) r/w Section 3(a), Section 6 r/w Section 5 (l) of the Protection of Children from Sexual Offences Act. The petitioner was arrested and remanded to judicial custody on 21.03.2023. 2. The prosecution case, in brief, is that; in the ``` 3 ``` ## **B.A. No.1780 of 2024** month of December, 2021, the accused took the survivor, a boy aged 13 years, to his apartment in Aluva and administered narcotic drugs and psychotropic substances and made him to sell the said contraband articles. In September 2022, the accused again took the survivor to his apartment and committed carnal intercourse and penetrative sexual assault on the survivor. Thereafter, the accused on several occasions till 26.02.2023 subjected the survivor to penetrative sexual assault. When the survivor refused to heed to the demand of the accused, he beat and kicked the survivor and caused hurt to him. Thus, the accused has committed the above offences. 3. Heard; Sri.Navaneeth N. Nath, the learned counsel appearing for the petitioner, Smt. Maya M.N, the learned Public Prosecutor. 4. The learned counsel appearing for the **B.A. No.1780 of 2024** ``` 4 ``` petitioner submitted that the petitioner is innocent of the accusations levelled against him. In fact, in September, 2022 the petitioner was in judicial custody in Crime No.460/2022 of the Chengamanadu Police Station. Therefore, by no stretch of imagination could the petitioner have committed penetrative sexual assault on the survivor. This by itself proves the falsity in the present crime. The petitioner has been in judicial custody for the last 1½ years, investigation in the case is complete and the final report has been laid. Therefore, the petitioner is entitled to be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. She submitted that the petitioner is an inveterate offender, since he is involved in 14 crimes of various police stations. Out of the 14 crimes, 12 crimes have been registered against the petitioner for committing the offences under Section **B.A. No.1780 of 2024** ``` 5 ``` 379/380 of the IPC. The same establishes that the petitioner is a habitual offender. In the case on hand, the petitioner has committed a heinous offence by committing penetrative sexual assault on a 13 year old boy. If the petitioner is released on bail, there is every likelihood of him intimidating the victim and the witnesses and tampering with evidence. Hence, the application may be dismissed. 6. The prosecution case is that, the petitioner had made the survivor to sell psychotropic substances, and he then committed carnal intercourse and penetrative sexual assault on survivor. Thereafter, he assaulted the survivor on different occasions. On a perusal of the bail objection report, it is apparent that the petitioner is the accused in the following cases. |1.|Vadakkekara Police<br>Station|Crime<br>No.612/2012|Under Sections<br>498(A) and 323<br>of the IPC| |---|---|---|---| |2.|Vadakkekara Police|Crime|Under Sections| **B.A. No.1780 of 2024** ``` 6 ``` ||Station|No.569/2013|294(B),<br>323,<br>506(ll)<br>and<br>354(A) of the<br>IPC| |---|---|---|---| |3.|Vadakkekara Police<br>Station|Crime<br>No.1118/2013|Under Sections<br>380, 457 r/w<br>Section 34 of the<br>IPC| |4.|Vadakkekara Police<br>Station|Crime<br>No.1123/2013|Under Sections<br>457, 380, 411<br>r/w Section 34 of<br>the IPC| |5|Vadakkekara Police<br>Station|Crime<br>No.636/2021|Under Sections<br>457 and 380 of<br>the IPC| |6|Kothamangalam<br>Police Station|Crime<br>No.1125/2013|Under<br>Sections457.380<br>r/w 34 of the IPC| |7|Chavara<br>Police<br>Station|Crime<br>No.1186/2019|Under Sections<br>457, 380 r/w<br>Section 34 of the<br>IPC| |8|Karunagappilly<br>Police Station|Crime<br>No.211/2020|Under Sections<br>457, 511 and<br>380 of the IPC| |9|Puthenvelikkara<br>Police Station|Crime<br>No.92/2021|Under Section<br>379 of the IPC| |10|Chengamanadu<br>Police Station|Crime<br>No.460/2022|Under Section<br>379 of the IPC| **B.A. No.1780 of 2024** ``` 7 ``` |11|North<br>Paravoor<br>Police Station|Crime<br>No.761/2021|Under Sections<br>454, 461 and<br>380 of the IPC| |---|---|---|---| |12|Angamaly<br>Police<br>Station|Crime<br>No.821/2022|Under Sections<br>380, 541, 457,<br>and 427of the<br>IPC| |13|Aluva East Police<br>Station|Crime<br>No.219/2023|Under<br>Section379<br>of<br>the IPC| |14|Aluva East Police<br>Station|Crime<br>No.297/2023|Under Section<br>379 of the IPC| 7. A reading of the above table undoubtedly establishes that the petitioner is a habitual offender. Out of the above 14 crimes, 12 crimes are registered against the petitioner for having committed theft and theft in dwelling houses. Going by the nature of allegations in the instant crime, the petitioner has committed a very serious offence by committing carnal intercourse on a 13 year old boy and sexually assaulting him. There is also an allegation that the petitioner has made the survivor ``` 8 ``` ## **B.A. No.1780 of 2024** indulge in the sale of psychotropic substances. The plea of alibi raised by the petitioner is a matter that is to be ultimately decided after trial. 8. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the following broad parameters while considering a bail application, namely: “9…………………..However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence (ii) nature and gravity of the accusation (iii) severity of the punishment in the event of conviction (iv) danger of the accused absconding or fleeing, if released on bail (v) character, behaviour, means, position and standing of the accused (vi) likelihood of the offence being repeated (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. ## 9. Likewise, in **Gurucharan Singh Others v. State** **(Delhi Administration)** [(1978) 1 SCC 118], the **B.A. No.1780 of 2024** ``` 9 ``` Honourable Supreme Court has observed that the larger interests of the public must be considered when considering an application for bail. 10. Furthermore, in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Another** [(2012) 9 SCC 446], the Honourable Supreme Court has opined that societal concern has to be kept in juxtaposition with individual liberty, and social concern deserves to be given priority over lifting the restriction on liberty of the accused. 11. The law has thus crystalised that while deciding an application for bail under Section 439, the courts are obliged to look into the nature, gravity and seriousness of the crime, the potential severity of the punishment that is likely to be imposed, the character, behaviour and standing of the accused, the prosecution’s legitimate apprehension regarding the tampering of evidence, the flight risk of the accused and whether releasing the **B.A. No.1780 of 2024** ``` 10 ``` accused on bail would have a deleterious impact on the society. 12. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularity on considering the fact that the petitioner is an inveterate offender, the prima facie materials that substantiate the petitioner’s involvement in the crime, the reasonable apprehension projected by the prosecution that the petitioner may intimidate the witnesses and tamper with evidence and also the potential severity of punishment that is likely to be imposed on the petitioner, I am not satisfied that the petitioner is entitled to be enlarged on bail. The application is meritless and is only to be dismissed. Resultantly, the application is dismissed. **Sd/C.S.DIAS, JUDGE** rmm/25/7/2024