Dismissed

Haneef v. State of Kerala

Kerala HC20 Jun 2022Bail Appl./2522/2022

Case brief

AI extract

What is this about?

The High Court dismissed two repeat bail applications filed by accused persons in a case involving penetrative sexual assault on a minor. The court held that there was no substantial change of circumstances to warrant a different view and thus refused bail, relying on Supreme Court precedents.

What did the court decide?

Bail applications dismissed as there was no substantial change of circumstances warranting a different view.

Haneef Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2022)

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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 GOPINATH P.

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MONDAY, THE 20^TH DAY OF JUNE 2022 / 30TH JYAISHTA, 1944 BAIL APPL. NO. 3144 OF 2022

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CRIME NO.509 OF 2020 OF ELOOR POLICE STATION, ERNAKULAM SC (NDPS) 1239/2021 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) Bail Appl. 9636/2021 OF HIGH COURT OF KERALA

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PETITIONERS:

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SHAHID AGED 25 YEARS S/O SHERIF AHAMMED, AGED 25/2021 YEARS, H.NO. 14, HANUPURA 1 PS, ASIM NAGAR, RAMPUR, UTTAR PRADESH- 244901. , PIN - 244901 BY ADV MATHAI VARKEY MUTHIRENTHY

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX

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OTHER PRESENT:

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PP: SMT.K.B.SONY

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.06.2022, ALONG WITH Bail Appl..2522/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.A.No.2522/2022& Conn.case

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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 GOPINATH P.

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MONDAY, THE 20^TH DAY OF JUNE 2022 / 30TH JYAISHTA, 1944 BAIL APPL. NO. 2522 OF 2022

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CRIME NO.509 OF 2020 OF ELOOR POLICE STATION, ERNAKULAM

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PETITIONER:

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HANEEF AGED 30 YEARS S/O NABI AHAMMED, AGED 29/2020 YEARS, SAIJINI NANGAR, RAMPUR CITY, RAMPUR DISTRICT, UTTAR PRADESH- , PIN - 244901 BY ADV MATHAI VARKEY MUTHIRENTHY

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RESPONDENTS:

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1 STATE OF KERALA 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX PP: SMT.K.B.SONY

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.06.2022, ALONG WITH Bail Appl..3144/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.A.No.2522/2022& Conn.case

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ORDER

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These bail applications are filed by accused Nos.1 and 2 in Crime No.509 of 2020 of Eloor Police Station, Ernakulam which has been registered alleging the commission of offences under Sections 376(2), 376(2)(n) of the Indian Penal Code and Section 4(2) r/w. Section 3, 6 and5(1) of Protection of Children from Sexual Offences Act, 2012.

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The petitioner in B.A.No.2522/2022 is the 1^st accused while the petitioner in B.A.No.3144/2022 is the 2^nd accused. The bail applications of both these petitioners had been considered by me earlier. In respect of the petitioner in B.A.No.2522/2022, I had through order dated 22.12.2021 in B.A.No.9628/2021 found that the petitioner was not entitled to be released on bail. In so far as the petitioner in B.A.No.3144/2022 is concerned, I had through order dated 22.12.2021 in B.A.No.9636/2021 held that he was also not entitled to be released on bail. The petitioner (1^st accused) in B.A.No.2522/2022 again approached this Court for bail, which was rejected by me through order dated 9.3.2022 in B.A.No.1003/2022 finding no change of circumstances. The circumstances which compelled me to reject the bail applications of the petitioners in these

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B.A.No.2522/2022& Conn.case

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case are set out in the order dated 22.12.2021 in B.A.No.9628/2021 and connected cases.

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The petitioners in these cases along with several other accused were living in a rented house opposite to the house of the minor victim, who was aged 14 years at that time. One among the accused enticed the minor victim pretending to be in love with her and perpetuated sexual assault and committed penetrative sexual assault on her several times. Misusing the proximity of one among the accused with the victim girl, the petitioners in these cases along with several other accused had subjected the victim girl to penetrative sexual assault several times at their house in Edappally and also at the house of the victim and also in a workshop at a place called 'Kunnumpuram'.

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Apart from the objections raised by the learned Public Prosecutor, I had while hearing B.A.No.9628/2021 and connected cases heard objections of Mrs. Parvathy Menon, who has been appointed as the support person for the victim girl by the Child Welfare Committee, Ernakulam District. I have in paragraphs 5 and 6 of the order dated 22.12.2021 in B.A.No.9628/2021 and connected cases set out the circumstances which compelled me to refuse bail to the petitioners and the other accused. The submissions of the learned

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B.A.No.2522/2022& Conn.case

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Government Pleader and the learned counsel appearing as support person of the victim girl were noted by me as under in the said order:-

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5. The learned Public Prosecutor submits that the crime alleged to have been committed by the accused is extremely heinous. It is submitted that a minor child, aged only 14 years, whose mother is no more and whose father is working in Delhi, was subjected to brutal rape by several persons at the time when she was staying with her grandparents. It is submitted that the petitioners are residents of the State of Uttar Pradesh and the grant of bail at this stage may not be conducive for conclusion of the trial as there is every chance of the accused absconding. It is submitted that in the very judgment relied on by the learned counsel for the petitioner, the Supreme Court has recognised the right of the Court to take a judicious decision regarding grant of bail even in cases where the trial is likely to take some time in order to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial. It is submitted that it is only when the Court is convinced that there would be inordinate delay in conclusion of trial, would the Courts step in to grant bail notwithstanding the fact that the accused are alleged to have committed serious offences as in this case.

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6. Smt. Parvathy Menon, the learned counsel appearing as support person of the victim girl would submit that her interactions with the victim girl have established that at least in respect of one among the accused, the victim girl had developed a sense of sympathy and a syndrome known as the 'stockholm syndrome'. The learned counsel submits that the relatives of the 4^th accused had visited the house of the victim girl with a request to withdrew from the prosecution. The learned counsel also points out that following filing of split charge against the accused, the charges under Section 120B of the Indian Penal Code, which is essential in the case has been dropped. The statement filed by the support person for the victim girl elaborates the reasons as to why this Court should not consider the grant of bail to the accused. Though these reasons are telling, I do not intend to burden this judgment by extracting the same except to state that the reasons are germane to my decision to refuse bail in these cases.

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The learned counsel appearing for the petitioners in these

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cases has filed separate argument notes in both the cases. Primarily, it is pointed out that the petitioners have been in custody for more than

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B.A.No.2522/2022& Conn.case

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21 months. It is submitted that a final report has been filed in the matter. It is submitted that one of the co-accused has already been granted bail on 7.7.2021 by this Court despite the fact that he faces graver allegations than the petitioners in these cases. It is submitted with reference to the judgment of the Supreme Court in Sanjay Chandra v. CBI (2012) 1 SCC 40 that any incarceration before conviction has substantial punitive element and it would be improper for any Court to refuse bail as a mark of disapproval of the conduct of the accused. It is submitted that going by the judgment of this Court in State of Kerala v. Raneef; 2011 KHC 4001, possible delay in completion of trial is a consideration that should weigh in this Court in deciding whether the petitioners are entitled to bail or not. It is submitted that the fact that the petitioners are hailing from another State in India should not be a consideration as held by the Supreme Court in Motiram and others v. State of Madhya Pradesh; 1978 KHC 178. It is submitted that the petitioners have sufficient local sureties, if they are released on bail. In respect of the petitioner in B.A.No.2522/2022, it is submitted that the said petitioner has three children and the third child was born three months after his arrest. It is submitted that the petitioner in B.A.No.2522/2022 has not even been able to see his third child on account of the incarceration.

¶45

B.A.No.2522/2022& Conn.case

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I have considered the contentions raised. It is settled by the judgment of the Supreme Court in Kalyan Chandra Sarkar v. Pappu Yadav ; (2005) KHC 604= (2005) 2 SCC 42 that unless there is a substantial change of circumstances warranting a different view being taken, successive bail applications cannot be entertained. The petitioners have no case that there has been a substantial change of circumstances warranting a different view being taken. Therefore, I am not inclined to allow these bail applications and the bail applications will stand dismissed. Sd/-

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GOPINATH P. JUDGE

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acd

Haneef v. State of Kerala

Case brief

What is this about?

What did the court decide?

Haneef v. State of Kerala

Case brief

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