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2019 DIGILAW 128 (KER)

State of Kerala v. Aboobacker P.

2019-02-07

RAJA VIJAYARAGHAVAN V.

body2019
ORDER : RAJA VIJAYARAGHAVAN V., J. 1. This petition under Section 482 of the Cr.P.C has been preferred by the State assailing the order dated 27.11.2018 passed by the learned Additional Sessions Judge For the Trial of Cases relating to Atrocities and Sexual Violence Towards Women and Children, Kozhikode. By the said order, the respondent herein, who was arrayed as the sole accused in Crime No.724 of 2018 of the Kunnamangalam Police Station was granted an order of anticipatory bail. What is of some relevance is that in the said crime, the respondent was accused of having committed offence punishable under Section 3(c) r/w. Sections 4 and 5 (l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act, 2012” for the sake of brevity), for abusing a minor boy aged 13 years. 2. Before adverting to the relevant facts of this case, it needs to be mentioned that the instant crime is one in a series of three crimes registered at the instance of the minor child. Similar allegations have been raised against a certain Ali and another man by name Sainudheen @ Kuttukka by the child. These men, like the respondent herein, are residents of the same neighbourhood and known to each other. The crimes registered against them are Crime Nos.722 and 723 of 2018 of the Kunnamangalam Police Station and involve serious offences under the POCSO Act, 2012. 3. In the above backdrop, the facts leading to the registration of the subject crime are dealt with below in some detail. On 15.11.2018 at about 4:20 PM, a minor boy along with his mother, approached the Sub Inspector of Police, Kunnamangalam Police Station and gave a statement alleging that the respondent is his neighbour and the child used to do sundry works for him. On a day, in the month of September, the respondent is alleged to have requested the child’s assistance for bringing materials from the market. The child was invited inside his house and he was told that the respondent was aware of the acts perpetrated on the child by Ali and Kuttukka, hinting thereby, the acts of sexual abuse. He demanded the child to accede to his carnal desires. The traumatized child made an attempt to leave. The respondent closed the door and thereafter subjected the child to carnal intercourse against the order of nature. He demanded the child to accede to his carnal desires. The traumatized child made an attempt to leave. The respondent closed the door and thereafter subjected the child to carnal intercourse against the order of nature. The child specifically alleges that the respondent made him to lie down and thereafter penetrated his organ between his thighs and did certain abhorrent acts. The boy was then threatened not to divulge the incident to anyone and he was paid a sum of Rs.200/-. He also explained the circumstances which prevented him from disclosing the acts of sexual abuse to his family members. The facts came to light when the child was allegedly chased by one of the accused. The child, fearing the worst, ran home. Seeing the fright of the child, his mother questioned him. It is then that the child disclosed about the traumatic events that took place earlier. The police was alerted on 15.11.2018 and all the three crimes were registered on the same day. 4. The accused in Crime No.722 of 2018 was arrested on 19.11.2018. He moved an application for regular bail, but the same was dismissed by the learned Sessions Judge taking note of the nature of allegations and the age of the victim. The court was of the view that no circumstances are made out to doubt his version. 5. The accused in Crime No.723 of 2018 was arrested on 26.11.2018 and he was remanded. His application for regular bail was dismissed holding that the investigation being in the early stages, circumstances warranted his continued detention in custody. The learned Sessions Judge also took note of the fact that the statement of the child under Section 164 of the Cr.P.C. is yet to be recorded. 6. The respondent, however, moved an application for anticipatory bail before the Court below contending that he is innocent. The learned Sessions Judge after detailing the allegations, passed the impugned order. Paragraph Nos. 4 to 6 of the order dated 27.11.2018 are relevant for the matter in issue and the same is extracted here-under. “4. The learned counsel for the petitioner submitted that the petitioner is innocent and he has not committed any offence. He is implicated in this case to wreak vengeance against the petitioner by the uncle of the minor boy. 4 to 6 of the order dated 27.11.2018 are relevant for the matter in issue and the same is extracted here-under. “4. The learned counsel for the petitioner submitted that the petitioner is innocent and he has not committed any offence. He is implicated in this case to wreak vengeance against the petitioner by the uncle of the minor boy. For the reason stated in the petition, he prays to direct the police to release the petitioner on bail in the event of arrest. 5. The learned Spl. Addl. Public Prosecutor has not seriously opposed the petition. Report has also filed by the investigating officer stating that the investigation of the case is in progress and if bail is granted to the petitioner he will influence and threaten the victim boy and his family and also will abscond. 6. Considering the report of the investigating officer, the facts and circumstances of the case, I am of the opinion that anticipatory bail can be granted to the petitioner subject to conditions.” 7. Holding so, the learned Sessions Judge allowed the application on conditions. The said order is under challenge. 8. Questioning the very sustainability of the order passed, Smt. Ambika Devi. S., the learned Special Public Prosecutor, submitted that there was no justification on the part of the learned Sessions Judge in granting anticipatory bail to the respondent by ignoring the serious nature of the allegations against him. It is submitted that the observation of the learned Sessions Judge that the learned Public Prosecutor had not seriously opposed the prayer is not correct. Materials were produced before this Court to contend that it was not the position. It is further submitted that the learned Sessions Judge had dismissed the application for regular bail filed by accused, who were facing similar allegations at the hands of the minor child, holding that there is no reason to doubt his version. It is urged that apparently no reason was given to take a different view insofar as the respondent is concerned. It is further submitted that in a serious case involving sexual abuse on a minor child, wherein the statute imposes reverse burden on the accused, the learned Sessions Judge ought to have delved into the matter in more detail. It is urged that apparently no reason was given to take a different view insofar as the respondent is concerned. It is further submitted that in a serious case involving sexual abuse on a minor child, wherein the statute imposes reverse burden on the accused, the learned Sessions Judge ought to have delved into the matter in more detail. According to the learned counsel, the learned Sessions Judge has not only failed to take into consideration, the circumstances under which a heinous crime was perpetrated against a minor boy, it also failed to record any reasons which persuaded the court to grant anticipatory bail to the respondent. It was argued that the order suffers from the vice of non- application of mind and the same being perverse, is liable to be set aside. The grant of anticipatory bail by the Court of Session is now being used as a tool to spread misinformation that the case of the victim that he was sexually abused was found to be false by a court having jurisdiction. 9. Sri.Sunny Mathew, the learned counsel appearing for the respondent, supported the order passed by the learned Sessions Judge. He forcefully urged that the circumstances which are peculiar to the respondent, were taken note of by the learned Sessions Judge while allowing his application. He would argue that the Prosecutor had not raised any serious objection when the anticipatory bail was taken up for hearing. It is further urged that the fact that the respondent is the Headmaster of a lower primary school with more than 32 years dedicated service and a person with no criminal antecedents was a relevant consideration and this fact might have weighed in the mind of the learned Sessions Judge while granting bail to him. He further contended that this application not being one for cancellation of bail on any of the grounds contemplated under Section 439 of the Cr.P.C. or due to any supervening circumstances pursuant to grant of bail, there is absolutely no reason warranting interference in a petition filed under Section 482 of the Cr.P.C. It is further submitted that the respondent had appeared before the investigating officer and had undergone all the medical tests. There being no supervening circumstances to show that the respondent had abused the liberty granted to him, this Court will not be justified in interfering with the protection granted by the trial court, argues the learned counsel. 10. I have anxiously considered the submissions advanced and have scrutinized the case diary. 11. The law with regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though, at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders, reasons for prima facie concluding why bail was being granted, particularly where the accused is charged for having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: “(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge.” [See Narendra K. Amin (Dr.) v. State of Gujarat, (2008) 13 SCC 584 ; Masroor v. State of U.P., (2009) 14 SCC 286 ; Ram Govind Upadyayay v. Sudarsan Singh and Others (2002) 3 SCC 598 , Ash Mohammad v. Shiv Raj Singh and Ors (2012) 9 SCC 446 )]. 12. Insofar as the jurisdiction vested in the Court of Session and the High Court under Section 438 of the Cr.P.C. is concerned, it is by now settled that anticipatory bail shall not be granted as a matter of course and the power should be exercised only when a special case is made out. The Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra AIR 2011 SC 312 , had occasion to lay down the parameters that should be taken into consideration while deciding anticipatory bail applications. The directions in the reports are instructive, which are as under: “122. The Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra AIR 2011 SC 312 , had occasion to lay down the parameters that should be taken into consideration while deciding anticipatory bail applications. The directions in the reports are instructive, which are as under: “122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of S.34 and S.149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 13. In State of Bihar v. Rajballav Prasad (2017) 2 SCC 178 , the State of Bihar approached the Supreme Court against the order of the High Court granting bail to the accused in a prosecution initiated under the POCSO Act, 2012. After laying down the principles that ought to have weighed in the mind of the Court while granting bail to the accused, it was held that in a prosecution under the Act the provisions of Section 29 of the Act, which provides for presumption, ought to have weighed in the mind of the court. 14. I have referred to the above authorities for the purpose of reiterating the factors that are to be taken into consideration while exercising powers of admitting an accused to bail when offences are of serious nature. As held in the decisions cited above, the court exercising the power under the provision is bound to ascribe reasons which persuaded the court to invoke the extraordinary powers. 15. Now the question is whether there is any bar for this Court in exercising the powers under Section 482 of the Code to set aside an order which has been passed without ascribing any valid reason. It needs no special emphasis to state that there is a distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has mis-conducted himself or due to the happening of certain supervening circumstances warranting such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. 16. In Puran v. Rambilas and Another (2001) 6 SCC 338 , it was held by the Supreme Court that the High Court in exercise of powers under Section 482 of the Code can interfere with the order which causes miscarriage of justice or is palpably illegal or unjustified. The fact that there were no supervening circumstances has no relevance in such a case [See Narendra K Amin (Dr.) v. State of Gujarat and Another (2008) 13 SCC 584 . 17. The fact that there were no supervening circumstances has no relevance in such a case [See Narendra K Amin (Dr.) v. State of Gujarat and Another (2008) 13 SCC 584 . 17. Keeping in mind, the aforesaid aspects, viz., the factors which are to be borne in mind while dealing with an application preferred under Section 438 of the Cr.P.C. involving serious offences under Act 32 of 2012, the need for ascribing reasons and the powers of the Superior Court to cancel the same on the grounds of perversity and manifest illegality, I shall deal with the submissions advanced by both sides. 18. As extracted in paragraph (6), all that the learned Sessions Judge has mentioned was that the application was not seriously opposed by the learned Special Additional Public Prosecutor. This fact is seriously disputed. However, it is evident from the order passed by the court below that the Prosecutor had submitted that the investigation is in progress and if bail is granted, he would influence and threaten the victim boy and his family and he is also likely to abscond. Much more disturbing is the fact that the regular bail applications of Ali and Sainudheen @ Kuttukka were pending before the court when the application for anticipatory bail was considered by the learned Sessions Judge. By detailed orders dated 29.11.2018 and 10.11.2018, both those applications were dismissed. On going through the impugned order, I am unable to discern as to what weighed in the mind of the court below while taking a different stand insofar as the applicant is concerned. Even the avocation of the respondent herein has not been mentioned in the order. It was incumbent upon the Sessions Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of Apex Court as well as this Court on the point. 19. I am not impressed with the contention advanced by the learned counsel appearing for the respondent that the liberty of the respondent should not be lightly interfered with. As held by the Apex Court in Ram Govind Upadhyay (supra), while liberty of an individual is precious and there should always be an all-round effort on the part of the courts to protect such liberty, but this protection can be made available only to the deserving ones. As held by the Apex Court in Ram Govind Upadhyay (supra), while liberty of an individual is precious and there should always be an all-round effort on the part of the courts to protect such liberty, but this protection can be made available only to the deserving ones. The term ‘protection’ cannot by itself be termed to be absolute in every situation but stands qualified depending upon the exigencies of the situation. 20. I am constrained to observe that in the instant case, the learned Sessions Judge completely lost sight of the basic principles and relevant considerations governing the subject. I hold that the learned Sessions Judge has granted pre-arrest bail on irrelevant considerations and by keeping out of consideration the relevant factors. I hold that the order granting bail to the respondent is cryptic, perverse, manifestly erroneous and unreasonable. 21. Consequently, the order passed by the learned Sessions Judge granting anticipatory bail to the respondent is set aside and the bail bonds of the accused are cancelled. The respondent is directed to surrender to custody forthwith, failing which, it shall be the duty of the investigating agency to take him into custody immediately. 22. It is made clear that the opinions expressed above are solely for the purpose of deciding this petition and shall have no bearing on the merits of the case. If an application for regular bail is moved by the respondent before the jurisdictional court, the same shall be considered on its merits untrammeled by any of the observations made in this order. This petition will stand allowed.