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2019 DIGILAW 738 (KER)

Nitheesh Mohan S/o Chandra Mohan,Kizhakke Veettil v. State Of Kerala Represented By The Public Prosecutor, High Court Of Kerala, Ernakulam

2019-09-05

ALEXANDER THOMAS

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ORDER : The petitioner herein has been arrayed as the sole accused in the instant Crime No.2008/2019 of Kayamkulam Police Station, Alappuzha, which has been registered for offences punishable under Secs. 457 and 354 of the IPC and Section 7 r/w Section 8 of the POCSO Act, 2012, on the basis of the FI Statement given by the minor victim girl aged 12 years on 17.07.2019 at about 9.45 am, in respect of the alleged incidents which had happened on the previous day 16.07.2019 at about 11.45 am. 2. The prosecution case is in short is that the petitioner aged 20 years is living in the immediate neighborhood of the minor victim girl aged 12 years and on 16.07.2019, at about 11.45 am, he had trespassed into her house and forcibly caught hold of her hand and thereafter he ran away. The petitioner has been arrested on 17.09.2019 and has been under judicial custody since then. 3. Sri. M.R.Sasith Kumar, the learned counsel appearing for the petitioner would urge that the allegation is false and further that it is highly illegal to remand and detained a petitioner for a long period of 50 days for such minor allegations as raised in the instant crime and that at any rate the continued detention of the petitioner is no long necessary as he had suffered detention for long 50 days for the above said alleged minor offence and that he may be released on regular bail subject to the stringent conditions. 4. The learned Public Prosecutor has opposed the plea for regular bail and has pointed out that possibility of the petitioner influencing and intimidating the witnesses, more particularly, the minor victim girl de facto complainant and her family members, if he is let out on bail. 5. Having heard both sides and after careful evaluation of the facts and circumstances of the case, it is seen that the allegation is that the petitioner aged 20 years had caught out of the hand of the minor victim girl who is his neighbour and then ran away. Since, this is the exact nature of the allegation raised against the petitioner, this Court is not in a position to understand as to why the detention of the petitioner should prolong for such long 50 days. Since, this is the exact nature of the allegation raised against the petitioner, this Court is not in a position to understand as to why the detention of the petitioner should prolong for such long 50 days. In cases like this, it is high time that the police officers themselves should take a bold and fair stand that the remand period may be as short possible. The main endeavor and focus of the investigating agency in a case of this nature should be to an effective interrogation of the accused to elicit the factual details and then to conduct the investigation into other factual matters on the basis of the information divulged by the accused and the other witnesses and in a case of this nature if the interrogation has been really effective, and if the remand is otherwise justified, the police could have taken a very bold and fair stand that the remand period should have been as short as possible instead of prolonging the agony and filling up the prison by such an accused that too in a situation, when the State is having a serious problems of overload of pre-trial of detenus in the various jails. This Court would also went to observe that in a case like this the competent court below concerned should have also ascertained from the police officers as to whether the interrogation process has been really effective and whether the accused has co-operative with interrogation process and has to whether the investigating officer is insisting for any further custodial interrogation of the accused. In the instant case it appears that after the interrogation of the petitioner he had been produced before the competent court below concerned and thereafter he has been remanded and it also appears that the investigating officer as thereafter never even sought for custodial interrogation of the petitioner, if that be so if the allegation is that the accused aged 20 years has caught out the hand of the victim girl 12 years, who is his neighbour and then run away, then this Court really fail to understand the real rationate and objective for such a prolonged and agonizing period of detention for an accused in all in a case of this nature. Moreover, the police Authorities as well as the competent criminal courts concerned should take cognizance of the crucial aspect that the liberty of an accused who is only basic investigation in the pending trial, is also a precious try for him and the right to dignified like as incorporated in Article 21 of the Constitution of India, would also require that pertainment of the liberty of the citizen should have rational nexus to the nature of the requirement of the investigation. As otherwise proportionality principles would come in to play and any disproportionate curtailment of the liberty of even an accused, would certainly have serious legal consequences. 6. Accordingly it is ordered that the learned Public Prosecutor has opposed the plea for regular bail. However, the caution made by the prosecutor regarding the likelihood of the petitioner intimidating or influencing the witnesses, more particularly the minor victim girl, who is his immediate neighbour. 7. After hearing both sides and after careful evaluation of the facts and circumstances of the case, this Court has no hesitation to hold that the continued detention of the petitioner is really unwarranted and unjustifiable and the petitioner has to be release on bail without any further delay subject to the stringent conditions. However, the apprehension raised by the prosecution regarding the likelihood of the petitioner influencing the witnesses more particularly the minor victim girl is a neighbour etc. should be duly facted in and as a safeguards will be placed as conditions in the grant of bail and it is proposed to order that the petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the minor victim girl is residing/study until the conclusion of the investigating process subject to several exceptions, which would be dealt with hereinafter. 8. Accordingly, it is ordered in the interest of justice that the petitioner shall be released on bail on his executing bond for Rs.40,000/-(Rupees Forty Thousand only) and on his furnishing two solvent sureties for the like sum both to the satisfaction of the competent court below concerned. Accordingly, in the interest of justice, it is ordered that - (i). The petitioner will report before the IO, Aluva at any time between 9:00 a.m. and 1 p.m. on every 2nd and 4th Saturdays for the next three months. Accordingly, in the interest of justice, it is ordered that - (i). The petitioner will report before the IO, Aluva at any time between 9:00 a.m. and 1 p.m. on every 2nd and 4th Saturdays for the next three months. Thereafter, the petitioner shall report before the said officer, if so required by the Investigating Officer in this crime. Further the petitioner will also report before the Investigating Officer as and when required by the said officer. (ii). The petitioner shall fully co-operate with the investigation process and shall not intimidate or attempt to influence the defacto complainant/victim, witnesses; nor shall tamper with the evidence. (iii). The petitioner shall not commit any similar offence while on bail. (iv). The petitioner shall not visit or go anywhere near the residence of the lady de facto complainant. (v). The petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the minor victim girl is residing/study, until the conclusion of the investigation process in this case, except for the limited purpose of reporting before the Police in connection with the above said crime or any other crimes or for attending any courts in relation to this case of other cases or for contacting lawyer/Advocate concerned. (vi). However, in case the petitioner has any genuine emergent personal need to visit the said area , then he may do so, but only with the prior permission of the Investigating Officer concerned. 9. In case of violation of any of the above conditions, the jurisdictional Court concerned will stand hereby empowered to consider the application for cancellation of bail, if required, and pass appropriate orders in accordance with the law. With these observations and directions, the above Bail Application will stand disposed of.