Dismissed

Athira v. Public Prosecutor

Kerala HC18 Nov 2020Bail Appl./4659/2020

Case brief

AI extract

What is this about?

The Kerala High Court dismissed bail application No.4659 of 2020 seeking anticipatory bail. Despite the petitioner producing a victim's father's affidavit and noting her pregnancy, the court held the nature of allegations (rape under IPC 376/POCSO) outweighed these factors. It directed surrender within ten days for bail consideration later.

What did the court decide?

Application dismissed; direction to surrender before jurisdictional court within 10 days for reconsideration of bail.

Athira Vs Public Prosecutor — Narcotics (NDPS) | Kerala HC (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 RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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Bail Appl..No.4659 OF 2020

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CRIME NO.403/2018 OF Mala Police Station, Thrissur

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PETITIONER/ACCUSED :

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ATHIRA, AGED 26 YEARS, W/O ANOOP, ANIKKAL HOUSE, KODAKARA DESOM, CHALAKKUDY TALUK, THRISSUR DISTRICT - 680022

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BY ADV. SRI.P.K.VARGHESE

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RESPONDENT/STATE & DE-FACTO COMPLAINANT :

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

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2 MANOJ M.S., AGED 43 YEARS, S/O SATHEESH, MADAVANPLACKAL HOUSE, ERAVATHOOR DESOM, KAKULISSERY VILLAGE, CHALAKKUDY TALUK, THRISSUR DISTRICT.

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R1 BY SRI K.P. HARISH, PUBLIC PROSECUTOR R3 BY ADV. P.S. ANISHAD

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..No.4659 OF 2020 2

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ORDER

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This application is filed under Section 438 of the Cr.P.C.

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The petitioner herein had earlier approached this Court on two occasions and had filed B.A. No.5966 of 2018 and B.A. No.1587 of 2020. After extensively hearing the learned counsel appearing for the petitioner and the learned Public Prosecutor, those applications were dismissed by Annexures- 1 and 2.

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Undaunted by the dismissal of the earlier applications of pre-

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arrest bail as early as in the month of October 2018 and June 2020, the petitioner herein has approached this Court yet again seeking the very same relief. Various contentions are advanced. The petitioner has also produced an affidavit of the father of the victim stating that he has no grievance against the petitioner. It is also stated that she is pregnant and prays that she be spared from the rigours of custodial interrogation.

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The learned Public Prosecutor on instructions submitted that

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no reliance can be placed on the affidavit purported to have been signed by the victim particularly, in view of the fact that the offence alleged in the instant case is one under Section 376 of the IPC and the provisions of the

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Bail Appl..No.4659 OF 2020 3

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Protection of Children from Sexual Offences Act, 2012. A minor child was subjected to sexual abuse by the 1st accused and the petitioner had facilitated the commission of the act by contacting the class teacher of the child and giving false information for her absence.

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5. The Apex Court in Kalyan Chandra Sarkar v. Pappu Yadav

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(AIR 2005 SC 921), has held that though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view be interfered with or where the earlier finding has become obsolete. This is the limited area in which, an accused, who has been denied bail earlier, can move a subsequent application.

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This Court in Vineeth v. State of Kerala [2005 (5) KHC 224], has held that though the accused has a right to make a second application for pre-arrest bail, he is bound to clearly spell out the change in fact situation, to canvass for such an order. Ordinarily, the matters, which has been canvassed in the earlier application, cannot be re-agitated on the very same grounds in the subsequent applications. It was held that filing successive bail applications without there being a change in fact situation would clearly amount to abuse of process.

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Bail Appl..No.4659 OF 2020 4

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In the case on hand, the allegation against the petitioner is

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that she has impersonated herself as the mother of the victim and took her to the 1st accused. The minor victim was further taken in the car and the 1st accused committed rape on her. This Court had earlier considered the applications for pre-arrest bail and the same was dismissed. Having regard to the nature of allegations, I do not think that a different view is warranted at this stage. This is not a case wherein the petitioner can be granted an order of pre-arrest bail. However, having regard to the fact that the incident was of the year 2019 and taking note of the fact that the petitioner is a pregnant lady, I direct her to surrender before the jurisdictional court within a period of ten days from today. Her application

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for bail shall be considered and appropriate orders shall be passed after considering her role and other attendant aspects.

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This application will stand dismissed however with the above directions.

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Sd/-

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RAJA VIJAYARAGHAVAN V

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JUDGE

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Athira v. Public Prosecutor

Case brief

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Athira v. Public Prosecutor

Case brief

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