Dismissed

Moosakunnugothi, v. Investigating Officer

Kerala HC10 Apr 2019Bail Appl./972/2019

Case brief

AI extract

What is this about?

Accused No.1 in two POCSO cases arising from sexual assault on minor girls sought bail, claiming default bail because the CBI's further investigation was still pending and alleging undue delay. The court held the default-bail right had extinguished on timely filing of the final report, found no blameworthy delay, and refused bail while directing expeditious DNA analysis and trial.

What the court decided

AI extract

Moosakunnugothi, Vs Investigating Officer — 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 ALEXANDER THOMAS

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WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941

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BAIL APPL.NO. 976 OF 2019

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AGAINST THE ORDER/JUDGMENT IN CRMP 15/2018 OF DISTRICT COURT, KAVARATHY DATED 27-06-2018

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PETITIONER:

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MOOSAKUNNUGOTHI, AGED 45 YEARS, S/O.YOUSUF, KUNNUGOTHI HOUSE, KUDHEHI VILLAGE, MINICOY ISLAND, UT OF LAKSHADWEEP.

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BY ADVS. SRI.SAIBY JOSE KIDANGOOR KUM.PARVATHY VIJAYAN SMT.ASWATHY NAIR SMT.S.SIBHA SRI.BENNY ANTONY PAREL SRI.P.M.MOHAMMED SALIH SRI.T.M.MUHAMED HAFEES

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RESPONDENTS:

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1 INVESTIGATING OFFICER, CBI, SCB, TRIVANDRUM, KERALA, THROUGH THE STANDING COUNSEL, CBI, HIGH COURT OF KERALA, KOCHI-31.

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ADDL. 2 THE ADMINISTRATOR U.T. OF LAKSHADWEEP, REP.BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM.

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ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 5/3/19 IN CRL.M.A NO.1/2019.

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SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10.04.2019, ALONG WITH BAIL APPL.NO.972/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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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 ALEXANDER THOMAS

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WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941

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BAIL APPL.NO. 972 OF 2019

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AGAINST THE ORDER/JUDGMENT IN CRMP 16/2018 of DISTRICT COURT, KAVARATHY DATED 27-06-2018

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PETITIONER:

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MOOSAKUNNUGOTHI,AGED 45 YEARS S/O.YOUSEF, KUNNUGOTHI HOUSE, KUDHEHI VILLAGE, MINICOY ISLAND UT OF LAKSHADWEEP.

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BY ADVS. SRI.SAIBY JOSE KIDANGOOR JAISON JOY KUM.PARVATHY VIJAYAN SMT.ASWATHY NAIR SMT.S.SIBHA SRI.BENNY ANTONY PAREL SRI.P.M.MOHAMMED SALIH SRI.T.M.MUHAMED HAFEES

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RESPONDENTS:

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1 INVESTIGATING OFFICER, CBI, SCB, TRIVANDRUM, KERALA, THROUGH THE STANDING COUNSEL, CBI, HIGH COURT OF KERALA, KOCHI-31.

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ADDL. 2 THE ADMINISTRATOR. U T OF LAKSHADWEEP, REP. BY ITS STANDING COUNSEL, HIGH COURT OF KERALA, ERNAKULAM.

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ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 53/19 IN CRL.M.A NO.1/2019.

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SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP SRI. SASTHAMANGALAM S. AJITHKUMAR, SPL.P.P. FOR C.B.I.

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10.04.2019, ALONG WITH BAIL APPL.NO.976/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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B.A. Nos. 976 & 972 of 2019

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Dated this the 10^th day of April, 2019

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O R D E R

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The petitioner in both these cases is accused No.1 in Crime No.9/2016 of Minicoy Police Station, Lakshadweep Union Territory, as well as in Crime No.13/2016 of the same Police Station, both of which has been registered for offences punishable under Secs. 4, 6, 8, 10, 12 and 21 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and Secs.109, 376(2)(1), 377 and 506(ii) of the IPC.

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The crux of the allegation against the petitioner is that, he has committed sexual assault on a minor victim girl aged about 9 years, and had taken video clips of such acts and circulated such video clips and committed rape and unnatural sexual assault on the minor girl child and also criminally intimidated the said minor victim. The wife of the petitioner abetted him for commission of said crime and got actively involved in commission of said offence and in videographing of the sexual assault. The petitioner has been arrayed as accused No.1 and his wife has been arrayed

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as accused No.2 in both these crimes. According to the prosecution case, the petitioner is employed as a Seaman in the Indian Merchant Navy and he is from a wealthy and influential family in the Minicoy island of the Union Territory of Lakshadweep and the minor victim girl belongs to very poor family, living in the vicinity of the petitioner's house in Minicoy. Crime No.9/2016 has been registered by the Minicoy Police on the basis of the complaint from the mother of the minor victim girl. The petitioner was arrested after much diligent efforts, since he was on duty in a foreign ship at the time of registration of the crime far away from the Indian Territorial Waters.

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The investigation of the case in Crime No.9/2016 by the Lakshadweep Police had revealed the commission of a very grave and heinous crimes against the minor victim girl, who belongs to a very backward section of society by the petitioner on several occasions with the support of his wife. In the statements of the petitioner and his wife recorded under Sec.164 of the CrPC clearly reveal the perverted sexual conduct of the petitioner, and that he is a potential threat to any girl child. During the course of the

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investigation in Crime No.9/2016, it came to light about a previous incident in which another minor victim girl aged 9 years was also sexually abused by accused No.1, which was revealed by accused No.2 in her Sec.164 statement recorded in Crime No.9/2016. It is on this basis that the later crime, viz, Crime No.13/2016 was registered by the Minicoy Police on the basis of the revelations by the accused No.2 (petitioner's wife) in her Sec.164 CrPC Statement recorded from her by the learned Magistrate. It is further stated by the Prosecution that the investigation in Crime Nos. 9/2016 and 13/2016 by the Lakshadsweep Police had revealed that the petitioner is a habitual offender indulging in heinous sexual assaults on minor girl children and circulating pornographic video clips of sexual assaults, and it is reasonably suspected that he has international connections in those involved in the business of child pornography. The search conducted in the residence of the petitioner in Minicoy had led to the recovery of large number of sex toys and similar equipments, and large number of memory cards and some mobiles phones were also recovered, which could be utilized for recording videos of sexual activities. The registration of

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the abovesaid crimes and the arrest of the petitioner as well as his wife, was a shock to the entire population of the Minicoy island, and the victims and their families are residing close to the residence of the petitioner. The minor victim girl in Crime No.9/2016 had suffered severe mental trauma on account of the perverted sexual assaults by the petitioner, and she had been provided psychological counseling periodically by the authorities. After the arrest of the petitioner in these two cases, the final report has been duly filed by the police authorities of the Lakshadweep Union Territory well within the 90 days statutory time period, as envisaged in Sec.167 of the CrPC. So it is pointed out by the Prosecution that the right of the petitioner to seek statutory default bail has thus not accrued in these two cases, due to the timely filing of the final report by the competent police authority of the Lakshadweep Union Territory Administration who was investigating the abovesaid two crimes.

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Further it appears that the Sessions Court concerned had initially granted bail to the petitioner in Crime No.9/2016 of Minicoy Police Station, as per order dated 21.11.2016 of the said

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Sessions Court in Crl.M.C.No.12/2016 filed before that Court. Immediately thereafter the Prosecution had filed Crl.M.C.No.8797/2016 under Sec.482 of CrPC before this Court, seeking to quash and set aside the said order dated 21.11.2016 whereby the petitioner (accused No.1) was granted bail by the Court below in Crime No.9/2016. This Court has granted interim stay order in the said Crl.M.C.No.8797/2016 whereby the operation and enforcement of the bail order dated 21.11.2016 granted by the Court below to the petitioner (accused No.1) in Crime No.9/2016 was stayed, and hence he was not released on bail. Later after hearing both sides, this Court had passed final order dated 30.6.2017 in Crl.M.C.No.8797/2016 finding that, the allegations disclosed against the petitioner in the said crime are very heinous and grave, and that the Court below has committed illegality and perversity in granting bail to the petitioner in such a heinous crime, and had accordingly allowed the plea of the Prosecution and had thereby set aside the impugned order dated 21.11.2016 of the Sessions Court concerned granting bail to the petitioner, etc. A copy of the said final order dated 30.6.2017

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rendered by this Court in Crl.M.C.No.8797/2016 has been produced as Anx.A in B.A.No.976/2019. The abovesaid bail application B.A.No.976/2016 arises out of the said Crime No.9/2016 of Minicoy Police Station, and the latter bail application, viz, B.A.No.972/2016 arises out of Crime No.13/2016 of Minicoy Police Station.

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It appears that after the filing of final reports by the Lakshadweep Police in the abovesaid crimes, it was felt that the cases would strongly involve the role of child sex racketeers and pornographers, who are in the business of child pornography with national and international ramifications, as the petitioner (accused No.1) is a Seaman who used to frequently visit ports in India and abroad, and therefore the Lakshadweep Police had requested for further investigation of those aspects regarding the international ramification of the crime by the Central Bureau of Investigation (CBI), whereupon the Lakshadweep UT Administration had also requested to conduct indepth investigation to find out, upto what extend the accused has circulated the child pornographic materials in social media and to other Seamen working in High Seas and the

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Merchant Shipping Companies and Agencies in Mumbai, and by handing over the further investigation to the CBI, the Lakshadweep UT Administration has stated that it was imperative to conduct further investigation in areas other than Lakshadweep, that is in Kerala, Maharashtra, etc and that a technical investigation would be needed to find out all the resources used by accused No.1 to upload child pornographic materials captured by him through social media for making monetary benefits, and it was also felt it necessary to identify the abetters and masterminds in that regard. As a result the Government of India in the Ministry of Home Affairs had directed as per their letter No.U-13034/29/2016/ANL dated 4.1.2017, ordering to entrust further investigation to CBI in the above matters. Accordingly, the CBI had taken up the matter in the abovesaid two crimes for further investigation, and CBI has re-registered the Crime No.9/2016 of Minicoy Police Station as RC 02(S)/2017/CBI/SCB/TVPM and Crime No.13/2016 has been re-registered by the CBI as RC 03(S)/2017/CBI/SCB/TVPM, etc.

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The petitioner's earlier plea for grant of regular bail in Crime No.13/2016 has been rejected by this Court as per order

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dated 8.2.2017 in B.A.No.439/2017, copy of which has been produced as Anx.A in the present B.A.No.972/2019. This Court conclusively found in the said order dated 8.2.2017 in B.A.No.439/2017 that, as the final report has been duly filed by the Lakshadweep Police well within the statutory outer time limit of 90 days as envisaged in the Sec.167 of the CrPC, the petitioner is not entitled for grant of statutory default bail. On the merits of the case, this Court held therein that, considering the allegations disclosed against the petitioner and the manner in which the said crime has been committed, and the articles seized from the residence of the petitioner would clearly reveal that, if the petitioner is released on bail, there is every chance of his intimidating and influencing the witnesses, and that it is not a fit case to grant regular bail to the petitioner. However this Court had directed the trial court to make all attempts to dispose of the case without much delay.

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The competent Sessions Court concerned as per order dated 27.6.2018 in Crl.M.P.No.15/2018 (arising out of Crime No.13/2016) and Crl.M.P.No.16/2018 (arising out of Crime

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No.9/2016) has conclusively held that, since the final report of the investigation by the Lakshadweep UT Police has been duly filed in both the crimes within the outer statutory time limit of 90 days as mandated in Sec.167 of the CrPC, the petitioner is not entitled for grant of statutory default bail in terms of proviso to Sec.167 (2) of the CrPC, and merely because the supplementary final report pursuant to the further investigation by the CBI has not been submitted, will not accrue any right to the petitioner to seek statutory default bail in view of the dictum laid down by the Apex Court to that effect in decisions as in Dinesh Dalmia v. Central Bureau of Investigation [AIR 2008 SC 78 = (2007) 8 SCC 770 =MANU/SC/7924/2007 = 2007 (4) CRIMES 33 ( SC)]. A copy of the said common order dated 27.6.2018 rendered by the Court of Sessions Judge, Kavaratti, Lakshadweep (Special Court for POCSO Offences) have been produced as Anx.D in both these Bail Applications.

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Thereafter the petitioner had again approached this Court by filing B.A.No.5024/2018 (arising out of Crime No.9/2016) and B.A.No.5039/2018 (arising out of Crime

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No.13/2016) seeking grant of bail. This Court held that, the perusal of the case records would show that the allegations disclosed against the petitioner in these two crimes are very heinous and grave, and that after the filing of the final report by the Lakshadweep Police, the CBI has been conducting further investigation and that it has not filed its final report, and that the further investigation has been so ordered as there were suspicions that the case involves international ramification as aforestated. The learned Standing Counsel for CBSE had also then submitted before this Court that, further time is required to collect scientific evidential materials on many aspects. Taking into consideration all these aspects, this Court held that the delay on the part of the CBI in completing further investigation is understandable. Further this Court held that in the decision in Dilawar v. State of Haryana & Another [JT 2018 (6) SC 118] the Apex Court refused to grant bail to an accused merely on the ground of delay in completing the investigation. Accordingly this Court held that it is not proper for this Court to grant bail to the petitioner in the light of the aforementioned aspects and directed the respondent CBI to

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take all steps to complete the investigation without much delay preferably within 60 days, and the CBI was also consequently directed to ensure that supplementary final reports are filed on completion of further investigation as mentioned above, within that time limit. In the light of these aspects this Court had dismissed both the bail applications. A copy of the common order dated 29.10.2018 rendered by this Court in B.A.No.5024/2018 and B.A.No.5039/2018 has been produced as Anx.E in both these applications.

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This Court as per common interim order dated 14.2.2019 rendered in these two bail applications had noted that the further investigation by the CBI has not been completed in these two crimes, despite the direction rendered by this Court in B.A.Nos.5024 and 5039 of 2018, to complete further investigation within 60 days, and accordingly directed the respondent CBI to explain as to the delay in completing the investigation and to so file a statement showing the present stage and progress of the investigation conducted by the CBI till date, and the reasons which stood in the way of CBI in completing the further investigation

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within the time limit of 60 days as directed by this Court in the earlier orders, and as also to explain as to why the CBI is unable to procure the report from the Central Forensic Science Laboratory, etc.

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Pursuant to the said directions, the respondent CBI has filed separate statements dated 18.2.2019 in both these bail applications. The various factual aspects of the matter, which led to the earlier filing of final report by the Lakshadweep Police, as well as the subsequent developments of the entrustment of the matter in conduct of further investigation to the CBI, etc, has been dealt with detail in the abovesaid statements.

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It is further stated in paragraph No.7 of the said statement that during the investigation by the Lakshadweep Police, electronic gadgets, mobile phones, SIM Cards, Micro SD Cards, Tab, Pen Drive and CD (Totaling to about 23 items) belonging to the accused persons had been seized and sent to the Central Forensic Science Laboratory (CFSL), Hyderabad, for scientific examination. The CBI vide letter dated 18.4.2017 requested CFSL, Hyderabad, seeking the date retrieved from the forensic analysis of

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these material objects. In the meanwhile, CDRs & financial transactions of the accused persons were thoroughly verified. Accused were operating several bank accounts and the transactions were checked. CBI examined 81 witnesses in Lakshadweep, Kerala, Mumbia regions and collected documents. During the investigation, CBI seized one External Hard Disc of Minicoy Police which was used to save the video clips circulated in Minicoy by the then SHO of Minicoy Police Station and two mobiles phones of a person suspected of receiving and sharing porno video clips. These were sent to CFSL, Hyderabad on 30.5.2017. CBI also seized a pen drive containing sexual abuse videos of victim in RC 2(S)/2017 (Crime No.9/2016). This was also sent to CFSL, Hyderabad on 15.2.2018 to retrieve the data. During the investigation CBI received the case sheet of the victim in RC 2(S)/2017 and travel particulars in respect of A-1. After several reminders, reports from CFSL, Hyderabad received to CBI and data retrieved in a Hard Disc received on 6.4.2018. Further in the report of the CFSL, Hyderabad had mentioned about expert opinions on 2 mobiles of accused was not furnished, as it could not be opened for want of

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password. The details of which has been dealt within paragraph 9 of the abovesaid statements. The said 2 unopened mobiles of the accused persons were again sent to the Centre for Development of Advanced Computing (CDAC), Trivandrum for examination to find out the veracity of the allegations/points received from the Lakshadweep Administration and the report is yet to be received for reaching conclusion. CBI also corresponded with National Crimes Record Bureau (NCRB), New Delhi to investigate into the crime records of the accused. CBI then interrogated the accused in jail to retrieve more details from him and scrutinized documents that belong to the accused persons.

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Further it is stated in paragraph No.10 of the said statement that the CBI had repeatedly requested the CFSL, Hyderabad by letters dated 26.7.2018, 2.8.2018, 22.9.2018, 23.10.2018, 2.11.2018 and 28.12.2018 etc for analysis report. It is in the meanwhile that this Court as per order dated 29.10.2018 in the abovesaid matters had directed the CBI to compete the further investigation and submit supplementary final report within 60 days. That for further investigation purposes, the CBI had also

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requested the Director of Medical Education, Trivandrum for constituting a board for ascertaining the age of the minor victim girls stated in the forensic analysis report from CFSL, Hyderabad. Accordingly, on 5.1.2019, a medical board was constituted and the report is awaited in this regard. Several sex toys were recovered from the house of accused persons during local police investigation and on identifying the sex toy by the victim in RC 3(S)/2017 (Crime No.13/2016), the same was referred to DNA profiling to the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad, the report on which is still awaited. Further that the CDAC was contacted by the CBI on 7.12.2018, 12.12.2018, 13.12.2018, 27.12.2018 and 1.1.2019 for getting earliest response and for speeding up the examination/analysis process. It is further stated in paragraph No.12 of the said statement that, the investigation conducted by CBI confirms the charges leveled by Lakshadweep Police against the accused in the final report already filed in the above two crimes. Further investigation on the aspects is awaited since results of the forensic experts from CDAC, Trivandrum and CDFD, Hyderabad on electronic gadgets and sex toys which are

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exhibits in the above two crimes are awaited.

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It is further urged by the respondent CBI that since

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final report has been duly filed by the Lakshadweep Police in the investigation conducted in the abovesaid two crimes within the statutory outer time limit of 90 days computed from the dates of arrest of the accused person, the benefit of the statutory default as per the proviso to Sec.167(2) of the CrPC is no longer available to the petitioner, in view of the settled legal position in that regard. Further it is pointed out that once the investigation is completed and the final report/charge sheet is duly filed, then the right of the accused to be released on statutory default bail disappears and the mere fact that the further investigation of the same crime is being conducted by a different agency like the CBI does not give any further right to the accused to revert back to Sec.167 of the CrPC and to again claim the benefit of statutory default bail. It is also stated that the petitioner (A1) is a Seaman and is very likely to abscond on and will not be available for trial if he is released on bail, and that the offence against the petitioner is of very grave and heinous nature and if he is released on bail, he is most likely to

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influence the witnesses who are residing in the same locality and would tamper evidence in that matter and that it would also adversely affect the further investigation and the trial. Further that the CBI is on the ... on filing the supplementary final report pursuant to further investigation in these cases and the same will be filed as soon as the report from the abovesaid expert agencies are received.

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The Lakshadweep Administration and the Police authorities has also filed detailed written objections in these two bail applications, through the learned Senior Central Government Standing Counsel appearing for the Lakshadweep Administration in these two cases. Various factual aspects as well as the legal objections have been meticulously dealt with detail in the abovesaid written objections filed by the Lakshadweep Administration in these two cases. The respondent CBI has also filed an additional affidavit dated 8.3.2019 in these matters. The details of sending the sex toys seized by the Police for forensic examination by the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad,had been dealt within paragraph 5 of the said

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affidavit dated 8.3.2019 and it is stated therein that the CBI has now been informed by the CDFD, Hyderabad that, a breakthrough was made by having a successful lifting of a DNA profile from the said MO, and this is required to be matched with the victim. In that regard the CBI has filed an application before the Sessions Court, Kavaratti (Special Court for POCSO Cases), seeking permission of said Court for taking blood sample of minor victim girl and that it is pending for orders. Sri.Sasthamangalam S.Ajithkumar, learned Standing Counsel for the respondent CBI has pointed out on the basis of instructions that since the minor victim girl is now having school examination, it is felt it may not be proper to disturb her studies at this point of time, that immediately after her school examinations are over and after obtaining permission from the Special Sessions Court for POCSO Cases, Kavaratti, it is expected that the blood samples of minor victim girl could be collected immediately and could be then forwarded to the CDFD, Hyderabad, for matching with the DNA profile lifted from the said sex toy. Further it is pointed out that the report of the CDFD, Hyderabad, is admissible under Sec.293 of the CrPC and after duly

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obtaining the same from CDFD, Hyderabad, the same will be forwarded directly to the Court concerned. The learned Standing Counsel for the respondent CBI has also pointed out that a detailed status report was also filed by the CBI before the Court below concerned on 18.2.2019 and sought this Court's permission to file an additional statement for producing a copy of the said status report dated 18.2.2019 filed by the CBI before the Special Court, Kavaratti, and also for dealing with the subsequent developments regarding the DNA profiling from CDFD, Hyderabad, etc. Thereafter the respondent CBI has filed an additional statement dated 12.2.2019 in this matter. Copy of the said status report dated 18.2.2019 filed by the CBI before the Special Court, Kavaratti, has been produced as Anx.R-1 thereto. The details of the further investigation conducted by the CBI in these two crimes has been dealt within the abovesaid status report dated 18.2.2019 filed by the CBI before the Special Court for POCSO Cases, Kavaratti. In paragraph No.11 of the said status report filed by the CBI before the Special Court for POCSO Cases, Kavaratti, the CBI has stated that the investigation hitherto conducted by the CBI confirms the

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charges leveled by the Lakshadweep Police against the accused. The result and finding of further investigation by the CBI could not establish the role of accused No.1 and accused No.2 in any national or international ramifications or pornographers/sex racketeers/transfer of alleged video from the investigation conducted so far. Further investigation on the points mentioned by the Lakshadweep Administration is in progress and the results of the Forensic experts from CDAC, Trivandrum and CDFD, Hyderabad on an electronic gadget and sex toy which are exhibits in these two cases are awaited and will be filed once the result are obtained.

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In paragraph No.12 of the said status report, it is stated that the said Special Court may proceed as per law with the charge sheet filed by the Lakshadweep Police against A-1 & A-2 on the sexual abuse of minor girls, and that the CBI will file the supplementary final report after completion of all other procedural formalities involved on the other aspects, etc. Paragraph Nos.11 and 12 of the said status report dated 18.2.2019 filed by the respondent CBI before the Special Court for POCSO cases,

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Kavaratti, reads as follows.

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“ 11. The investigation hitherto conducted by CBI confirms the charges leveled by Lakshadweep Police against the accused. The result and finding of further investigation by CBI could not establish the role of accused A-1 Shri Moosa Kunnugothi & A-2 Smt.Noorjahan Bhendaragothi in any national/international ramification or pornographers/sex racketeers/transfer of alleged video from the investigation conducted so far. Further investigation on the points mentioned by Lakshadweep Administration is in progress. Results of the Forensic experts from CDAC, Tirvandrum and CDFD, Hyderabad on an electronic gadget and sex toy which are exhibits in RC 2(S)/2017 and RC 3(S)/2017 respectively are awaited and will be filed once the result are obtained.

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12. Hence, this Hon'ble Court may pleased to proceed as per law with the charge sheet filed by the Lakshadweep Police against A-1 & A-2 on the sexual abuse of minor girls. The CBI will file the supplementary report after completion of all the points in the matter of national and international ramification in these cases.”

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Further it will be also profitable to refer to the contents

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of the additional statement filed by the CBI dated 12.3.2019 before

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this Court in these matters, which reads as follows:

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“It is submitted that the report of the CFSL, Hyderabad on the 2 mobile phones seized from one Ismail Mariye, who is suspected to have received and shared the video and also the report from CDAC Thiruvananthapuram about the mobile phones seized from A1, have been forwarded by the concerned labs to the trial court and they are part of trial records. The report of DNA profiling from CDFD (Centre for DNA Fingerprinting and Diagnostics) Hyderabad on the MO forwarded through the trial court is awaited.

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The true copy of the Status Report filed on 18/02/19 before the trial court is produced herewith and may be marked as Annexure R1 on the side of the respondent.”

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Paragraph No.1 of the said additional statement dated

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12.3.2019 would clearly show that the report of the CFSL, Hyderabad, on the two mobile phones seized from A-1, who is suspected to receive and share the video and also the report from CDAC, Thiruvananthapuram, about the mobile phones seized from A-1, have been forwarded by the concerned labs to the trial court and they are part of trial records. Further it is also stated that the report of the DNA profiling from the CDFD, Hyderabad, on the MO forwarded through the trail Court is awaited, etc.

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Heard Sri.Saiby Jose Kidangoor, learned counsel appearing for the petitioner/A-1 in these two cases, Sri.S.Manu, learned Central Government Standing Counsel for Lakshadweep Administration, appearing for the respondent UT of Lakshadweep, and Sri.Sasthamangalam S.Ajithkumar, learned Standing Counsel for the CBI, appearing for the respondent CBI. The main contentions urged by Sri.Saiby Jose Kidangoor, learned counsel appearing for the petitioner/A-1 in these two cases are two fold. Firstly it is urged that the mandatory time limit of 90 days for completing the investigation, failure of which leads to the accrual of the right to statutory default bail as per Sec.167 of the CrPC is

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applicable not only in respect of the investigation originally conducted by the local Police but also in respect of any further investigation that is conducted after submission of the final report/charge sheet, etc and otherwise it will permit to giving undue latitude to the investigating agency like in the instant case, to unnecessarily prolong and delay and protract the process leading to the incarceration of the accused for a very long time, and that such unreasonable delay is against the very spirit and substance of the mandatory and protective provisions contained in Sec.167 of the CrPC in the matter of accrual of statutory default bail. The second contention is an alternative plea to the abovesaid main contention, and it is urged that even if the petitioner fails on the first contention, it could be seen that there are undue and arbitrary delay on the part of the respondent CBI in completing the further investigation even though this Court had specifically ordered in the order dated 29.10.2018 in B.A.Nos.5024 and 5039 of 2018 that, the further investigation should be duly completed by the respondent CBI within 60 days so that the supplementary final report could be duly filed by them before the court below

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concerned within the said 60 days time limit. The explanation of the respondent CBI on the delay is not satisfactory and therefore in view of the undue delay on the part of the respondent CBI in completing the further investigation, this Court may grant the benefit of regular bail to the petitioner subject to stringent conditions as otherwise, the long incarceration of the petitioner in jail would be unjust and would be deprivation of his Constitutional right to a dignified life as guaranteed in Article 21 of the Constitution of India.

¶129

As against the first contention, the matter in issue is no longer res integra and is fully covered against the petitioner. On facts, it is common ground for all the parties concerned, including the petitioner accused (A1) that the Lakshadweep UT Police has filed the final reports pursuant to the investigation carried out in these two crimes within the statutory outer time limit of 90 days as mandated in Sec.167 of the CrPC, computed from the dates of respective arrest of the petitioner in these two crimes. There is no dispute on that crucial factual issue. It has been conclusively held by the Apex Court in paragraph No.29 of the judgment dated

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18.9.2007 in Criminal Appeal No.1249 of 2007 (arising out of SLP(Crl) No.513/2007) reported in AIR 2008 SC 78 = (2007) 8 SCC 770 = 2008 CriLJ 337 = MANU/SC/7924/2007, which reads as follows:

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“The statutory scheme does not lead to a conclusion in regard to an investigation leading to filing of final form under Sub-section (2) of Section 173 and further investigation contemplated under Sub-section (8) thereof. Whereas only when a charge sheet is not filed and investigation is kept pending, benefit of proviso appended to Sub-section (2) of Section 167 of the Code would be available to an offender, once, however, a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code.”

¶134

The dictum laid down by the Apex Court in Dinesh Dalmia's case supra has been followed by the Apex Court in view of various subsequent decisions, as can be seen from paragraph No.11 of the decision in Achpal @ Ramswaroop & Anr v. State of Rajasthan (AIR 2018 SC 4647) and in paragraph No.26 of the judgment in Union of India through CBI v. Nirala Yadav @ Raja Ram Yadav @ Deepak Yadav (AIR 2014 SC 3036) . In the light of the abovesaid undisputed factual position and in the light of the abovesaid legal position well settled by the Apex Court, it is only to be held that since the final

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report/charge sheet has already been duly filed by the Lakshadweep UT Police, well within the outer statutory time limit of 90 days envisaged as per Sec.167 of the CrPC, and computed from the dates of arrest of the petitioner in respect to these two crimes, it is only to be held that the right of the petitioner to seek statutory default bail has already vanished, and therefore merely because the further investigation is being carried out by the CBI, will not in any manner will lead to the revival of right to seek statutory default bail in terms of the proviso to Sec.167(2) of the CrPC. The said contention of the petitioner in that regard will also stand overruled and rejected. In that regard, the learned counsel appearing for the petitioner has also raised yet another aspect stating that, even the respondent CBI has clearly stated and admitted in their status report dated 30.10.2017 filed before the Court below concerned, (produced as Anx.B in these two applications) more particularly in paragraph No.6 thereof,that the final report/charge sheet already filed by the Lakshadweep UT Police is incomplete in all aspects and it is also pertinent that the offences allegedly committed by the accused persons on the minor

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victim girls require thorough and complete investigation to give proper justice to the victims etc, and that this would clearly show that the final report/charge sheet filed by the Lakshadweep UT Police is incomplete one, and therefore the petitioner has right to seek statutory default bail inasmuch as the final report/charge sheet filed by the Lakshadweep UT Police is incomplete and it has filed only for the purpose of defeating the right to the petitioner to seek statutory bail, and this court can lift the “veil” in that regard and then it could be seen that the final report/charge sheet so filed by the Lakshadweep UT Police is nothing but a sham document even going by the admitted version of the respondent CBI, and therefore the petitioner could seek the benefit of statutory default bail as final report/charge sheet said to have been filed by the Lakshadweep UT Police cannot be treated in law to be a proper final report/charge sheet. The abovesaid contention raised by the petitioner has been seriously objected to and rebutted by the learned Standing Counsel appearing for the Lakshadweep UT Administration as well as the respondent CBI.

¶141

On an anxious consideration of the abovesaid plea, it is

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only to be held that the abovesaid argument raised by the petitioner is fallacious and untenable. On a consideration of the totality of the facts and circumstances, as disclosed from the various reports/statements filed by the respondents Lakshadweep UT Police and the CBI, it can be seen that the respondent Lakshadweep UT Police has bonafide conducted the investigation and has filed the final report/charge sheet well within the outer time limit of 90 days. The Lakshadweep UT Police and the Lakshadweep UT Administration has only requested the Central Government Authorities to entrust the further investigation of the crimes to the CBI only to examine the limited aspects regarding the international ramifications of the crimes, as the accused No.1 is a sailor who was frequently in the High Seas as part of his merchant shipping duty, and it was felt that he may have links with other persons involving with the business of child pornography at the national and international levels and to conduct a thorough investigation on those aspects, as the Lakshadweep UT Police may not have the necessary infrastructural wherewithal to conduct such further investigation on those aspects. Moreover the respondent CBI has

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now filed various reports before this Court as well as before the Court below concerned stating categorically and unambiguously that the further investigation conducted by the CBI has confirmed the charges leveled by the Lakshadweep UT Police against the accused persons, and the result and finding of the further investigation by the CBI could not establish the role of A-1 in any national or international ramifications or the role pornographers/ sex racketeers/ transfer of alleged videos in the further investigation conducted. Further the respondent CBI has clearly and cogently stated in Anx.R-1 status report filed before the Court below concerned that the said court may proceed as per law with the charge sheet already filed by the Lakshadweep UT Police as against A-1 and A-2 on the sexual abuse of the minor victim girls, and that the supplementary report of the CBI on the other aspects could be immediately filed after getting the report of analysis of the expert agency like the CDFD, Hyderabad, etc. Therefore in the light of these aspects, it cannot be contended that the final report/charge sheet filed by the Lakshadweep UT Police is a sham final report, and that the petitioner is thus entitled for the benefit of

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statutory default bail in terms of the proviso to Sec.167(2) of the CrPC. The said contention of the petitioner will also stand overruled.

¶151

The last and the final aspect to be considered by this Court is as to whether there has been undue , arbitrary and unreasonable delay on the part of the respondent CBI in completing the investigation inspite of the time limit of 60 days mentioned by this Court in the common order dated 29.10.2018 in B.A.Nos.5024 and 5039 of 2018. The CBI has stated with all factual particulars about the various steps that they have done in undertaking the process of further investigation, and the various bottle necks they had to face in getting timely reports from expert agencies like Central Forensic Science Laboratory (CFSL), Hyderabad, Centre for Development of Advanced Computing (CDAC), Trivandrum, and Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad, etc. The various factual aspects in that regard has been reiterated in the abovesaid statements/reports of the respondent CBI has also been dealt with herein above. After hearing all the parties concerned and after

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meticulous examination of the abovesaid reports and statements of the respondent CBI, this Court is of the considered view that the respondent CBI cannot be blamed for the time it has taken so far in completing the investigation, and that it is mainly on account of getting timely reports from the expert agencies like CFSL, Hyderabad, CDFD, Hyderabad and CDAC, Thiruvananthapuram, etc that they were not in a position to file the supplementary final report in these two cases within the time limit of 60 days as suggested by this Court earlier. Therefore the contention raised by the petitioner that there has been arbitrary and unreasonable delay on the part of the respondent CBI in conducting the investigation will stand rejected.

¶155

Further the Apex Court has held in various decisions as in Dilawar v. State of Haryana & Another [JT 2018 (6) SC 118], the Apex Court refused to grant bail to an accused merely on the ground of delay in completing the investigation. The allegations disclosed against the petitioner are indeed grave and heinous, and has to be strictly dealt with in accordance with along law. The revelations made by accused No. 2, who is none other

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than the wife of the petitioner (accused No.1) in her statement recorded under Sec.164 of the CrPC by the learned Magistrate would clearly show the heinousness and highly perverted nature of the crimes that has been committed on poor and innocent minor victim girls hailing from marginalized and weaker section of society. The Apex Court has held in a catena of decisions that the accused in such heinous offences are not entitled for the grant of bail merely taking into account the period of pre-trial detention. In this regard, it is pertinent to note the decision of the Apex Court in the case in Ram Govind Upadhyay v. Sudarshan Singh & Ors [(2002) 3 SCC 598] wherein it has held as follows:

¶159

“The consideration of the period of one year spent in jail cannot in our view be a relevant consideration in the matter of grant of bail, more so by reason of the fact that the offence charged is that of murder under S. 302 IPC having the punishment of death or life imprisonment -- it is a heinous crime against the society and as such, the court ought to be rather circumspect and cautious in its approach in a matter which stands out to be a social crime of very serious nature.”

¶160

So also it has been held by the Apex Court in the decisions as in Gobarbhai Naranbhai Singala & Others v. State of Gujarat and Others [(2008) 3 SCC 775] reads as follows:

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“19. The third reason given by the High Court for grant of bail, that the respondent had been in jail for the last more than 2 years, is equally untenable in view of the observations, made by this Court in State of U.P. v. Amarmani Tripathi (Manu/C/0677/2005 = 2005 Cri L 4149).

¶164

The condition laid down under Section 437(1)(i) is sine quo non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.”

¶165

In view of the extreme gravity and heinousness of the allegations disclosed against the petitioner, and in view of the abovesaid legal position, this Court is not inclined to accede to the plea of the petitioner for grant of regular bail and the said plea will stand rejected.

¶166

However this Court is of the considered view that, necessary directions should be issued to ensure that the process of expert analysis is duly completed so that the report of the expert

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agency like the CDFL, Hyderabad is made available without any further delay, and so that the respondent CBI may file their supplementary final report in these two crimes immediately thereafter. The abovesaid additional statement filed by the respondent CBI dated 12.3.2019 before this Court would disclose that, the report of the CFSL, Hyderabad, on the two mobile phones seized from A-1, as well as the report from the CDAC, Thiruvananthapuram, about the mobile phones seized from A-1, etc have been duly forwarded by the said laboratories to the trial court concerned, and now they are part of the trial court records. Now this Court is apprised that the respondent CBI has been informed by the CDFD, Hyderabad that, a breakthrough has been made by having a successful lifting of a DNA profile from the sex toy, and this is required to be matched with the victim. In that regard the CBI has filed an application before the Sessions Court, Kavaratti (Special Court for POCSO Cases), seeking permission of said Court for taking blood sample of minor victim girl and that it is pending for orders. This Court is also apprised that the blood sample of the victim could be not be taken, as then the minor

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victim girl was having the school examinations.

¶173

Accordingly it is ordered that the Court below concerned and the respondent CBI should take immediate steps to get the blood sample of the minor victim girl concerned, in accordance with due procedure, and should be send to CDFD, Hyderabad, who thereafter will give their report of analysis on the DNA profiling process without any further delay. The court below concerned and the respondent CBI is directed to ensure that the blood sample of the minor victim girl concerned is taken and is forwarded to the CDFD, Hyderabad for their expert analysis on the DNA finger printing process, without any further delay. Steps in this regard should be duly taken by the Court below concerned within two weeks from the date of production of a certified copy of this order. Thereafter the Centre for DNA Fingerprinting and Diagnostics (CDFD), Hyderabad, will expeditiously complete the process of analysis and should give their report on analysis to the trial court concerned without any further delay, and at any rate within 6 weeks from the date of receipt of the blood sample of the minor victim girl concerned. The Court below concerned will

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forward a copy of this order to the CDFD, Hyderabad, along with blood sample of the minor victim girl, inorder to ensure that the abovesaid time line is strictly complied with by the said expert agency without any further delay. The Director, CDFD, Hyderabad, will ensure that top priority should be accorded on this aspect, so that the abovesaid directions given by this Court is complied with in letter and spirit with all expedition, taking note of the extreme gravity and seriousness of the case. Thereafter the respondent CBI shall immediately ensure that the supplementary final report is filed before the Court below concerned without any further delay at any rate within one month thereafter. If it is felt that there is any delay on the part of the CDFD, Hyderabad, to submit the report of analysis of DNA fingerprinting process as aforestated, then the respondent CBI or the respondent Lakshadweep Administration may file appropriate application in these matters for orders from this Court.

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After the supplementary final report is duly filed, the Court below concerned will complete all necessary formalities including aspect relating to the framing of charges, and will ensure

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that top priority is accorded for the final disposal of the trials in respect of these two crimes, as early as possible, especially taking note of the complaint of the petitioner regarding the delay in completing the trial. The Court below concerned will ensure that the trial process in relation to these two crimes is duly expedited and completed within 6 months from the submission of the supplementary final reports by the respondent CBI in these matters. The Registry will forward a copy of this order to the Special Session Court for POCSO Cases, Kavaratti for necessary information and further action.

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With these observations and directions, the above Bail Applications will stand dismissed.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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MMG

Moosakunnugothi, v. Investigating Officer

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Moosakunnugothi, v. Investigating Officer

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