Allowed

Joy V.S. v. State of Kerala

Kerala HC5 Mar 2019Bail Appl./8741/2018

Case brief

AI extract

What is this about?

In a bail application under Section 438 CrPC regarding POCSO charges, the High Court examined the statutory presumption under Section 29 POCSO. Finding suspicious delays in the complaint lodging despite victim disclosure, and noting lack of need for custodial interrogation, the Court granted anticipatory bail subject to strict conditions.

What did the court decide?

Petitioner released on bail via bond of Rs. 50,000 with two sureties, subject to conditions including regular appearance, non-interference with witnesses, and passport surrender.

Joy V.S. Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY ,THE 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940

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Bail Appl..No. 8741 of 2018

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CRIME NO. 592/2018 OF Nedupuzha Police Station , Thrissur

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Applicant/Accused:

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JOY V.S. AGED 45 YEARS (CLINICAL COUNSELING PSYCHOLOGIST), S/O. V.M. SILVA, VALIYAVEETTIL PANJIKARAM HOUSE, GREENLAND AVENUE ROAD, KOLAZHY, THRISSUR - 680010.

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BY ADVS. SRI.P.M.RAFIQ SMT.POOJA PANKAJ SRI.AJEESH K.SASI SRI.M.REVIKRISHNAN SRI.V.C.SARATH SRI.VIPIN NARAYAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031.

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SR.PUBLIC PROSECUTOR SRI.T.K.SHAJAHAN

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01.03.2019, THE COURT ON 05.03.2019 PASSED THE FOLLOWING:

B.A.No.8741/2018

“CR”

R.NARAYANA PISHARADI, J

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B.A.No.8741 of 2018

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Dated this the 5^th day of March, 2019

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O R D E R

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This is an application for anticipatory bail filed under Section

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438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code').

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The petitioner is the accused in the case registered as Crime No.592/2018 of the Nedupuzha Police Station under Sections 7 read with 8, 9(p) read with 10 and 11(iii) read with 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the Act').

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The petitioner claims to be a Psychologist. He had conducted psychological therapy to the victim girl, who is aged fourteen years. It is alleged that, during the months of May and June, 2018, while the petitioner conducted counselling sessions to the victim, he showed her video scenes with obscene contents

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B.A.No.8741/2018

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and that he caught hold of her hand with sexual intent. It is also alleged that he gave the victim girl a stamp, depicting nude picture of a man and woman, and a letter through another girl, who was his patient.

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The mother of the victim girl gave a complaint to the Child Welfare Committee regarding the acts allegedly committed by the petitioner on/towards her daughter. The Child Welfare Committee recorded the statement of the victim girl and forwarded it to the District Police Chief, Thrissur (which was ultimately sent to the Nedupuzha police station). Thereafter, the statement of the victim girl was recorded by the police and on the basis of that statement, Crime No.592/2018 of the Nedupuzha police station was registered against the petitioner.

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I have heard the learned counsel for the petitioner and the learned Public Prosecutor and also perused the case diary.

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Learned counsel for the petitioner submitted that the petitioner had sent a lawyer notice to the mother of the victim girl claiming his professional fees. Learned counsel has pointed out that it was only more than one month after the date of

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B.A.No.8741/2018

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receipt of the lawyer notice, the mother of the victim girl made complaint to the Child Welfare Committee and it indicates the falsity of the allegations levelled against the petitioner. Learned Public Prosecutor has opposed the application on the ground that the allegations levelled against the petitioner are serious in nature.

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The investigating officer has recorded the statement of the victim girl. Her statement has also been recorded by the Magistrate concerned under Section 164 of the Code. The sum and substance of the allegations against the petitioner in these statements is that he showed the victim girl video scenes containing obscene contents and that one day, he caught hold of her hand and also made attempt to touch her breast. There is also an allegation that the petitioner sent her a stamp depicting nude photograph and also a letter through another girl.

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The first information statement would show that when the alleged acts were committed by the petitioner, the parents of the victim girl were abroad and she was living with her grandfather. It is revealed from the first information statement

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B.A.No.8741/2018

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that when the mother of the girl returned from abroad on 17.07.2018, the girl had told her about the acts committed by the petitioner. Inspite of such disclosure made in the month of July, 2018, by the victim girl regarding the acts committed by the petitioner, the mother gave the complaint to the Child Welfare Committee only on 22.09.2018. By that time, the petitioner had sent a lawyer notice to the mother of the victim girl claiming an amount of Rs.10,00,000/- as professional fees. She had received the lawyer notice on 08.09.2018. Even then, no complaint against the petitioner was made immediately to the police or to the Child Welfare Committee. No explanation is also forthcoming for the delay.

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Mere delay in reporting the matter to the authorities concerned, especially sexual assault on a minor girl, is immaterial and it would not be fatal to the prosecution case. However, in the instant case, it is not the delay alone that is significant. The significant fact is that the complaint was given to the authorities concerned only two weeks after the mother received the lawyer notice from the petitioner claiming a huge amount as

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B.A.No.8741/2018

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professional fees. This raises suspicion on the prosecution case against the petitioner. When the victim had disclosed the matter to her mother in July, 2018, one would have expected the mother to report the matter to the authorities concerned much earlier than 22.09.2018. The fact that she reported the matter only after receiving a lawyer notice from the petitioner assumes significance.

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This court is not oblivious to Section 29 of the Act which contains a legislative mandate that the court shall presume commission of the offences by the accused unless the contrary is proved. Section 29 of the Act states that where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved. The court shall take into consideration the presumption under Section 29 of the Act while dealing with an application for bail filed by a person who is accused of the aforesaid offences under the Act (See State of Bihar v.

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B.A.No.8741/2018

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Rajballav Prasad : AIR 2017 SC 630 ).

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However, the statutory presumption under Section 29 of

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the Act does not mean that the prosecution version has to be accepted as gospel truth in every case. The presumption does not mean that the court cannot take into consideration the special features of a particular case. Patent absurdities or inherent infirmities or improbabilities in the prosecution version may lead to an irresistible inference of falsehood in the prosecution case. The presumption would come into play only when the prosecution is able to bring on record facts that would form the foundation for the presumption. Otherwise, all that the prosecution would be required to do is to raise some allegations against the accused and to claim that the case projected by it is true. The courts must be on guard to see that the application of the presumption, without adverting to essential facts, shall not lead to any injustice. The presumption under Section 29 of the Act is not absolute. The statutory presumption would get activated or triggered only if the prosecution proves the essential basic facts. If the accused is able to create serious doubt on the

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veracity of the prosecution case or the accused brings on record materials which would render the prosecution version highly improbable, the presumption would get weakened. As held by the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra : AIR 2011 SC 312 , frivolity in prosecution should always be considered 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 anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. It should necessarily depend on facts and circumstances of each case in consonance with the legislative intention.

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No doubt, the Act is a landmark legislation to prevent sexual abuse and exploitation of children. The Act intends to protect the children from offences of sexual assault, sexual harassment and pornography. Dignity of the child has been laid immense emphasis in the scheme of the legislation. But, the court cannot turn a blind eye to undisputed facts in a case. The courts shall honour the spirit and intent behind the legislation

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and at the same time guard against misuse of its provisions.

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In the instant case, there is no allegation against the

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petitioner that he actually touched any private part of the victim girl. Custodial interrogation of the petitioner appears to be not necessary to have an effective investigation of the case. The prosecution has no case that on getting bail, the petitioner would flee from justice. He has got no criminal antecedents. The prosecution has no case that the petitioner was previously involved in similar cases. The apprehension expressed by the prosecution is only that the petitioner would threaten the witnesses and tamper with the evidence, if released on bail. Such a contingency can be avoided by imposing appropriate conditions on granting bail. Considering the facts and circumstances of the case, I find that this is a fit case in which the discretion of the court can be exercised in favour of the petitioner to grant the benefit of pre-arrest bail.

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In the result, the application is allowed and it is ordered as follows:

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(1) The petitioner shall be released on bail on executing a

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bond for Rs.50,000/- (Rupees fifty thousand only) with two sureties each for the like amount in the event of his arrest by the police in Crime No. 592 of 2018 of Nedupuzha Police Station.

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(2) The petitioner shall appear before the investigating officer between 9 a.m and 11 a.m on all Saturdays for a period of six months from the date of his release on bail or till final report is filed in the case, whichever is earlier.

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(3) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer.

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(4) The petitioner shall not, in any manner, influence or intimidate the victim girl or the members of her family or other prosecution witnesses. He shall not in any manner contact or try to contact the victim girl or her parents till final report is filed in the case.

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(5) The petitioner shall surrender his passport in the jurisdictional court concerned within three days of his release on bail. If he has no passport, he shall file an affidavit to that effect

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before that court within that period.

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(6) The petitioner shall appear before the investigating

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officer as and when directed by him in writing to do so.

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(7) If the petitioner violates any of the conditions of bail,

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the jurisdictional court concerned is at liberty to cancel the bail without any further orders of this Court but in accordance with law.

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It is made clear that the observations made in this order regarding the merits of the prosecution case shall have no bearing on the court below, if and when the case comes up for trial before it.

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

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jsr/05/03/2019

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True Copy

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PS to Judge

Joy V.S. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Joy V.S. v. State of Kerala

Case brief

What is this about?

What did the court decide?

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