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2024 DIGILAW 562 (KER)

Sreejith S. v. State of Kerala

2024-05-24

A.BADHARUDEEN

body2024
ORDER : 1. This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure by the sole accused in Crime No. 2034/2023 of Puthoor Police Station, Kollam. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor in detail. Perused the relevant documents that form part of the case diary. 3. In a nutshell, the prosecution case is that the accused, who is none other than the father of the de facto complainant, committed penetrative sexual assault against the minor, aged 4 years, in the year 2021-2022 while she was watching television sitting adjacent to the father. The specific allegation is that he put his finger on the vagina of the victim and compelled her to touch and kiss on the penis of the father. On this premise, the prosecution alleges commission of offences punishable under Sections 376AB and 376(2)(n) of the Indian Penal Code and Section 4(2) read with Section 3(b) and Section 6 read with Section 5(l) (m)(n)(p) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘POCSO Act’ for short) 4. While pointing out the innocence of the accused, who has been working in Indian Army, the learned counsel for the petitioner has taken the attention of this Court to the previously filed litigations between the husband and wife. It is pointed out that, as on 25.11.2022, the wife filed a petition for return of money and gold ornaments and by the time, it has noticed by the accused that the wife, who is the mother of the victim, solemnized marriage between the accused and her, after suppressing her first marriage. 5. According to the learned counsel, in paragraph No. 10 of Annexure A2, OP(HMA) No. 976/2023, filed on 02.09.2023, the previous marriage and suppression of the said fact by the wife are stated. It was thereafter this FIR was lodged on 29.12.2023, recording the statement of the minor, as a result of counseling. The learned counsel for the petitioner would submit that registration of this crime, after two months of filing divorce petition, detecting the first marriage of the wife, is an after thought at the instance of the mother and the statement given by the minor, who was only 4 years of age at the time of occurrence, after two years, to be viewed with much care and caution. 6. The learned Public Prosecutor strongly opposed bail and submitted that the minor divulged the occurrence at the age of 6 years, though it was happened at the age of 4 years and the overt acts were stated before the counsellor. Further, when she was taken to the doctor before the Medical College also, she reiterated the incident and therefore, the prosecution case, based on the statement of the victim, is well placed where arrest and custodial interrogation of the petitioner are necessary. 7. First of all, it is to be observed that even though repeated incidents of sexual assault against minor victims have been a menace to the society, there are cases of false implication also, adverting to the seriousness of the provisions of the POCSO Act, with intention to detain the so called offender in custody. It is relevant to note further that, after the marriage, when the relationship being collapsed, the parties initiate litigations and when serious allegations of subtle importance being raised as grounds for divorce, in custody matters of child/children and other matrimonial litigations registering a case under the POCSO Act, recording the statement of the minor could also foreseeable, as a retaliatory measure. This is a matter which would require serious consideration and fair investigation. But in such cases, the courts have the duty to see that innocent person/s shall not be detained during crime stage. Registering a case against the father of the victim under the POCSO Act, after two months of getting notice in a divorce petition issued to the mother of the victim, who has been holding the custody of the victim, when the divorce petition discloses suppression of first marriage by the mother, that too narrating an occurrence two years before registration of the crime would contain elements of falsification. When such cases being dealt with, the courts shall apply its mind to avoid detention of innocent persons behind the bar and to conduct effective investigation by other means to separate the grain from the chaff. I do not say that this case is a false case, but the allegations would require fair and impartial investigation and I leave the same to the province of the Investigating Officer. But the truth of the present case is a matter of serious investigation in the facts discussed herein above and as argued by the learned counsel for the petitioner. 8. But the truth of the present case is a matter of serious investigation in the facts discussed herein above and as argued by the learned counsel for the petitioner. 8. In view of the matter, facilitating investigation, with direction to the petitioner to subject himself for interrogation for two days before the Investigating Officer in between 10 a.m. and 3 p.m. and to subject himself for medical potency test to aid the investigation, he can be enlarged on anticipatory bail. In the result, this bail application stands allowed. The petitioner is enlarged on bail on the following conditions: (i) The petitioner shall surrender before the Investigating Officer, for two days on 03.06.2024 and 04.06.2024 in between 10 a.m. and 3 p.m. for interrogation and medical potency test, within ten days from today. In the event of his arrest, the Investigating Officer shall produce the petitioner before the Special Court on the date of arrest itself. (ii) On such production, Special Court shall release the petitioner on bail, on executing bond for Rs. 50,000/- (Rupees fifty thousand) by himself and by two solvent sureties, each for the like sum to the satisfaction of the Special Court. (iii) The petitioner shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. (iv) The petitioner shall not intimidate the witnesses or interfere with the investigation in any manner. (v) The petitioner shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted.