Allowed

Sreekumar v. State of Kerala

Kerala HC7 Aug 2020Bail Appl./116/2020

Case brief

AI extract

What is this about?

High Court of Kerala allowed compulsory bail application for accused charged under IPC 293 and POCSO 11(iii). Court held custodial interrogation not necessary due to nature of proof, granting bail on stringent conditions including cooperation and social distancing.

What did the court decide?

Bail allowed on stringent conditions including appearance before IO within ten days for interrogation, execution of bond of Rs.50,000 with two sureties, cooperation with investigation, and adherence t

Sreekumar Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2020)

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BA No.116 OF 2020

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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 P.V.KUNHIKRISHNAN

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FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942

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Bail Appl..No.116 OF 2020

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CRIME NO.2004/2019 OF Thiruvallam Police Station , Thiruvananthapuram

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PETITIONER/ACCUSED:

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SREEKUMAR, AGED 28 YEARS S/O.VENU, RESIDING AT KANNAMCODE, PURAMPOKKU COLONY, VELLAR, PACHALLOOR, THIRUVANANTHAPURAM- 695027.

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BY ADV. SRI.G.SUDHEER BY SREEKUMAR(PARTY IN PERSON)

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RESPONDENTS/STATE AND COMPLAINANT:

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

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2 STATION HOUSE OFFICER, THIRUVALLAM POLICE STATION, THIRUVANANTHAPURAM- 695027.

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SRI.RENJITH.T.R, PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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BA No.116 OF 2020

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O R D E R

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Dated this the 7th day of August 2020

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This Bail Application filed under Section 438 of Criminal Procedure Code was heard through Video Conference.

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Petitioner is the accused in Crime No.2004/2019 of Thiruvallam Police Station. The above case is registered against the petitioner alleging offences punishable under Sections 293 IPC and Section 12 r/w 11(iii) of Protection of Children from Sexual Offences Act.

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The prosecution case is that the accused committed sexual harassment against a minor boy aged 13 by showing pornographic videos to the child from his mobile phone. Hence it is alleged that the petitioner committed the offence.

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Heard the learned counsel for the petitioner and the learned Public Prosecutor.

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The counsel for the petitioner submitted that even if the entire allegations are accepted, no offence is made out against the petitioner. The counsel submitted that the offence under Section 293 IPC is bailable. The counsel also submitted that the offence under Section 11(iii) of the POCSO Act is not attracted in this case because even according to the prosecution

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BA No.116 OF 2020

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there is no case that the accused with sexual intend shows any object to a victim child in any form or media for pornographic purpose. The counsel submitted that the offence is not attracted. Moreover, the counsel also submitted that the maximum punishment that can be imposed under Section 12 of the POCSO Act is three years. The counsel also submitted that the petitioner will co-operate with investigation.

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The Public Prosecutor opposed the bail application. The Public Prosecutor submitted that the offence under Section 11(iii) of the POCSO Act is attracted, which is a non bailable offence. The Public Prosecutor submitted that the mobile phone is to be recovered.

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After hearing both sides, I think this bail application can be allowed on stringent conditions. This bail application is pending before this Court from 7.1.2020 onwards. There is no interim order restraining the police in arresting the petitioner. Even now the petitioner is not arrested in connection with above case. Probably the police may be waiting for a final decision of this bail application. The case is registered in 2019. The investigation itself is delayed because of the pendency of the bail application. The offences alleged are under Section 293 IPC and Section 11(iii) of the POCSO

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BA No.116 OF 2020

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Act. Section 293 IPC is bailable. Whether the offence under Section 11(iii) of the POCSO Act is made out or not is to be investigated by the investigating officer. A perusal of the statement of the victim it is clear that the offence can be proved only through oral evidence. For that purpose the custodial interrogation of the petitioner may not be necessary. Moreover, the first information statement in this case is filed on 10.9.2019. The alleged incident happened, according to the victim, about three months back from the date of first information statement. Whether there is a proper explanation for the delay in filing the first information statement is also a matter to be investigated by the investigating officer. Considering the entire facts and circumstances of this case, I think the custodial interrogation of the petitioner may not be necessary.

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Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in Re: Contagion of COVID-19 Virus In Prisons case (Suo Motu Writ Petition(C) No.1 of 2020) and a Full Bench of this Court in W.P(C)No.9400 of 2020 issued various salutary directions for minimizing the number of inmates inside

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BA No.116 OF 2020

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prisons.

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Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement (2019 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.

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Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:

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The petitioner shall appear before the Investigating Officer within ten days from today and shall undergo interrogation.

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After interrogation, if the Investigating Officer propose to arrest the petitioner, he shall be released on bail executing a bond for a sum of Rs.50,000/-(Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the officer concerned.

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The petitioner shall appear before the Investigating Officer for interrogation as and

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BA No.116 OF 2020

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when required. The petitioner shall co-operate with the investigation and 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 from disclosing such facts to the Court or to any police officer.

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Petitioner shall not leave India without permission of the jurisdictional Court.

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Petitioner shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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The petitioner shall strictly abide by the various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of Covid 19 pandemic.

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If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court.

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Sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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Sreekumar v. State of Kerala

Case brief

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Sreekumar v. State of Kerala

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