Allowed

Shahul Hameed @ Shavuppa v. State of Kerala

Kerala HC14 Jan 2021Bail Appl./9113/2020

Case brief

AI extract

What is this about?

The court allowed a common bail application for the petitioner accused under IPC 363, IPC 376 AB and POCSO Act. Entitled to statutory default bail as the final report was not filed within 90 days, the petitioner was released on stringent conditions including non-residence near victims and social distancing norms.

What did the court decide?

Petitioner released on bail with bond of Rs.50,000 and stringent conditions including no contact with victims and social distancing compliance.

Shahul Hameed @ Shavuppa Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2021)

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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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THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

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Bail Appl..No.9130 OF 2020

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CRIME NO.888/2020 OF Perinthalmanna Police Station , Malappuram

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PETITIONER:

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SHAHUL HAMEED @ SHAVUPPA AGED 32 YEARS SON OF MOIDEEN, PARUTHIKUTHU HOUSE, PONNIYAMKURISSI, PERINTHALMANNA, MALAPPURAM DISTRICT 679322

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BY ADV. SRI.K.RAKESH

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RESPONDENTS:

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

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2 THE STATION HOUSE OFFICER PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT 679322

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SMT.MAYA.M.N. PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.01.2021, ALONG WITH Bail Appl..9113/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.A.Nos.9113 & 9130 of 2020 2

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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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THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

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Bail Appl..No.9113 OF 2020

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CRIME NO.889/2020 OF Perinthalmanna Police Station , Malappuram

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PETITIONER:

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SHAHUL HAMEED @ SHAVUPPA AGED 32 YEARS SON OF MOIDEEN, PARUTHIKUTHU HOUSE, PONNIYAMKURISSI, PERINTHALMANNA, MALAPPURAM DISTRICT 679322

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BY ADV. SRI.K.RAKESH

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RESPONDENTS:

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

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2 THE STATION HOUSE OFFICER PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT. 679322

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SMT.MAYA.M.N. PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.01.2021, ALONG WITH Bail Appl..9130/2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.A.Nos.9113 & 9130 of 2020 3

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P.V.KUNHIKRISHNAN, J

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B.A.Nos.9113 & 9130 of 2020

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Dated this the 14^th day of January, 2021

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O R D E R

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These Bail Applications are filed under Section 439 of

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Criminal Procedure Code was heard through Video Conference.

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Petitioner in these two bail applications are one and the

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same. He is involved in Crime No.888 of 2020 and Crime No.889 of 2020 of Perinthalmanna Police Station. The above cases are registered against the petitioner alleging offences punishable under Sections 363, 376 AB IPC. The offences under Section 4(2), 3(a), 6(l) , 5(l),(m),(n) of the POCSO Act are also alleged. The petitioner was arrested in the above cases on the same day. Since these two cases are connected, I am disposing these two bail applications by a common order.

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The prosecution case is that the petitioner sexually

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B.A.Nos.9113 & 9130 of 2020 4

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abused two minor kids aged 6 years and 7 years.

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

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The counsel for the petitioner submitted that the petitioner is arrested in these two cases on 5.10.2020. He is in custody from that date onwards. The counsel submitted that the petitioner is entitled statutory bail under Section 167 Cr.P.C because no final report is filed in these two cases by the police as on today. According to the counsel, the petitioner is in custody for more than 90 days.

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When this bail application came up for consideration yesterday (13.1.2021), this Court directed the Public Prosecutor to get instruction from the Investigating Officer, whether the final report is filed in these two crimes. The Public Prosecutor after getting instructions submitted that the final report is not filed even today.

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If the final report is not filed within 90 days from the date of arrest, the petitioner is entitled statutory bail under

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B.A.Nos.9113 & 9130 of 2020 5

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Section 167(2) Cr.P.C. It is disturbing to see that in a cases like this, the Investigating Officer is not completing the investigation within the statutory period. But the law mandate that the petitioner is entitled bail. It is true that as per Section 439(1A) Cr.P.C, while considering a bail application in cases in which the offences under Section 376 AB is alleged, the presence of the informant or any person authorised by him is obligatory at the time of hearing of bail application. But admittedly in this case, the petitioner is entitled statutory bail. This Court considered this point in X v State of Kerala and another (2020(5)KLT 312) in which it is stated that victim has no right to be heard while granting default bail to accused under Section 167(2) Cr.P.C. Therefore, the petitioner is entitled bail in the facts and circumstances of the case.

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The Public Prosecutor submitted that the petitioner is a close relative of the victim and there may be a direction to the petitioner not to enter the residential premises of the victim. Such a condition can be imposed while granting bail.

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B.A.Nos.9113 & 9130 of 2020 6

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Considering the entire facts and circumstances of the case and considering the detention period of the petitioner, I think this bail application can be allowed on stringent conditions.

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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

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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 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

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B.A.Nos.9113 & 9130 of 2020 7

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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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Petitioner shall be released on bail on executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each

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for the like sum to the satisfaction of the jurisdictional Court.

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The petitioner shall appear before the

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Investigating Officer for interrogation as and 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

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B.A.Nos.9113 & 9130 of 2020 8

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police officer.

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Petitioner shall not leave India without

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permission of the jurisdictional Court.

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Petitioner shall not commit an offence

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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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