Allowed

Thomas Mathew v. State of Kerala

Kerala HC26 Mar 2018Bail Appl./1434/2018

Case brief

AI extract

What is this about?

The High Court allowed a bail application filed by an accused facing POCSO charges alleging sexual abuse of his minor child by him. The court doubted the veracity of the allegations given the pending family court custody dispute and granted anticipatory bail subject to conditions requiring the accused's appearance before the investigation officer.

What did the court decide?

Petition allowed; accused to be released on bail upon arrest upon executing a bond with sureties, subject to conditions of cooperation with investigation and travel restrictions.

Thomas Mathew Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

¶4

MONDAY, THE 26TH DAY OF MARCH 2018 / 5TH CHAITHRA, 1940

¶5

Bail Appl..No. 1434 of 2018

¶6

CRIME NO. 127/2018 OF NEDUMKANDAM POLICE STATION , IDUKKI

¶7

PETITIONER/ACCUSED

¶8

THOMAS MATHEW @ SIBI, AGED 43 YEARS, S/O. MATHAI, PUNNATHANATH HOUSE, MUNIYARA KARA, PANIKKAMKUDI P.O, KONNATHADI VILLAGE, IDUKKI DISTRICT.

¶9

BY ADV.SRI.THOMAS J.ANAKKALLUNKAL

¶10

RESPONDENT/COMPLAINANT:

¶11

STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, NEDUKKANDAM POLICE STATION, IDUKKI DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.

¶12

*ADDL.R2 IMPLEADED.

¶13

ADDL.R2 MARIAMMA @ DHEENAMMA, AGED ABOUT 55 YEARS, W/O.DEVASIA, PULLATTU HOUSE, KALKOONTHAL KARA,

¶14

NEDUMKANDAM,

¶15

IDUKKI DISTRICT.

¶16

(ADDL.R2 IS IMPLEADED AS PER ORDER IN CRL.M.A.2856 OF 2018 DATED 26.3.2018)

¶17

BY PUBLIC PROSECUTOR SRI. SAJJU.S. ADDL.R2 BY ADV. DR.PAULY MATHEW MURICKEN

¶18

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26-03-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶19

AL/-

¶20

RAJA VIJAYARAGHAVAN V., J

¶21

= = = = = = = = = = = = = = = = = = B.A. No. 1434 of 2018

¶22

= = = = = = = = = = = = = = = = = = Dated this the 26^th day of March, 2018

¶23

ORDER

¶24

This petition is filed under Section 438 of the Code of Criminal Procedure.

¶25

The petitioner herein is the accused in Crime No. 127 of 2018 of the Nedumkandom Police Station registered under Section 7 & 8 of the Protection of Children from Sexual offences Act, 2012. The informant is the mother-in-law of the petitioner herein.

¶26

According to the informant, the petitioner herein had married her younger daughter about 7 years back. A child was born in the wedlock and she is now aged 4 ½ years. From the date of her birth, the child was residing with her maternal grandparents. About 1½ years back, the daughter of the de facto complainant left for her heavenly abode after fighting cancer for a long period of time. After the death of his wife, the petitioner filed a petition before the Family Court, Kattappana, seeking the custody of the minor child. The said petition was allowed ex parte. The order was challenged by the informant before this Court

¶27

BA.1434/18

¶28

-:2:-

¶29

and by Annexure-A2 order dated 18.12.2017, the petition was allowed and the Family Court was directed to dispose of the petition in an expeditious manner. However, during the interregnum, visitation rights was granted to the petitioner. The petitioner was permitted to have custody of the child on every Saturday till 4 P.M. on the succeeding Sunday and he was also permitted to have custody of the child during the first half of Christmas holidays. The petitioner was also directed to pay maintenance at the rate of Rs.3,000/- to the child every month. According to the informant, in terms of the orders of this Court, the petitioner took custody of the child on 22.12.2017 and the same continued unhindered till 17.2.2018. It is alleged that after the child was returned, while the informant was giving her a bath, the child complained of pain in her private part. On enquiry with the child, she is alleged to have told the informant that the petitioner had touched her intimate private part. The child was immediately taken to the hospital. However, the treating doctor did not admit the child after examining her. Entertaining a fear that if the

¶30

BA.1434/18

¶31

-:3:-

¶32

custody of the child is handed over to the petitioner as per the orders of this Court, it is likely that he would subject the child to sexual abuse, a complaint was lodged stating the above allegations. This led to the registration of the Crime.

¶33

The learned counsel appearing for the petitioner submitted that this is a classic case of abuse of the provisions of the Protection of Children from Sexual Offences Act, 2012. The petitioner is the father of the minor child and only intention of the informant is to ensure that she gets an upper hand in the proceedings before the Family Court. The learned counsel submits that the child is just 4 ½ years old and her mother had died only recently after fighting cancer. The informant did not even come for the cremation of his wife. The child has been with the grandparents all through and she has been brainwashed to say such a horrendous thing against her own father. The learned counsel would further submit that the recording of evidence in O.P.(G & W) No.165 of 2016 has commenced before the Family Court and is being proceeded with an expeditious manner. By

¶34

BA.1434/18

¶35

-:4:-

¶36

levelling such unfounded allegations, the intention of the informant is to ensure that the petitioner is denied the custody of his child, for which he has been fighting for. The learned counsel would also submit the medical evidence clearly falsifies the case of the informant .

¶37

The de facto complainant entered appearance through counsel and the learned counsel was permitted to advance arguments. It is submitted by the learned counsel that the child has clearly stated about the abuse to which she was subjected to by the petitioner. All that the informant did was to set the law in motion so that the offender could be brought to book.

¶38

I have heard the learned Public Prosecutor and have gone through the case diary.

¶39

The investigation is still in the early stages. However, the records reveal that proceedings seeking custody of the minor child was initiated by the petitioner and the same is being strongly contested in the Family Court. The child has been with the maternal grandparents as the mother of the child was suffering from cancer for a long time. She had

¶40

BA.1434/18

¶41

-:5:-

¶42

expired only recently, and it was thereafter the fight for custody of the minor child commenced. After going through the materials on record, I have my own doubts with regard to the veracity of the allegations levelled by the informant. The contention of the learned counsel appearing for the petitioner that these allegations have been levelled to get the upper hand in the proceedings pending before the Family Court for custody of the minor child cannot be easily brushed aside.

¶43

Having given my anxious consideration to the facts and circumstances, the nature and gravity of the allegations, the materials in support thereof and attendant facts, I am of the view that this is a fit case warranting exercise of the discretionary powers vested on this court to grant relief to the petitioner. The custodial interrogation of the petitioner does not appear to be necessitous in the instant case.

¶44

In the result, this petition will stand allowed. In the event of arrest of the petitioner in the aforesaid Crime, he shall be released on bail by the officer effecting the arrest on his executing a bond for a sum of Rs.50,000/- (Rupees fifty

¶45

BA.1434/18

¶46

-:6:-

¶47

thousand only) with two solvent sureties each for the like sum. The above order shall be subject to the following conditions:

¶48

(i) The petitioner shall co-operate with the investigation and shall appear before the Investigating Officer on every Saturdays between 10 A.M and 1 P.M. for a period of one month or till the final report is filed whichever is earlier.

¶49

ii) If the petitioner intends to leave India, he shall obtain previous permission from the court having jurisdiction.

¶50

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the

¶51

application for cancellation, if any, and pass appropriate orders in accordance with the law.

¶52

Sd/-

¶53

Raja Vijayaraghavan V., Judge

¶54

al/-27/3.

Thomas Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

Thomas Mathew v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Naveen Narayanan Vs State of Kerala

Usmankutty Vs State of Kerala

Shirosh Vs Sub Inspector of Police

Nazeer.M.S Vs State of Kerala

Shoukathali C.K. Vs State of Kerala

Shaji Mathew Vs State of Kerala