Allowed

Bijoy B.K. v. State of Kerala

Kerala HC4 Apr 2024Bail Appl./682/2024

Case brief

AI extract

What is this about?

This Court allowed a third regular bail application filed by the father of a minor victim facing charges of penetrative sexual assault under POCSO and IPC. Granting bail subject to stringent conditions prohibiting district entry and interaction with witnesses.

What did the court decide?

Petitioner released on bail subject to bond, restriction on entering Kozhikode district, and prohibition on interacting with victim or witnesses.

Bijoy B.K. Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2024)

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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 BECHU KURIAN THOMAS

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THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946

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BAIL APPL. NO. 682 OF 2024

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CRIME NO.749/2022 OF Kodakara Police Station, Thrissur

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AGAINST THE ORDER/JUDGMENT DATED IN Bail Appl. NO.3288 OF 2023 OF
HIGH COURT OF KERALA
PETITIONER:

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XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV K.RAKESH

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RESPONDENTS:

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

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2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX

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3XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADVS.
M.B.SHYNI
RAJESH KUMAR R.(K/112/2013)
V.R.ANILKUMAR(K/001161/2020)
SARAFUDHEEN T.(K/801/2022)
ELDHOSE JOY(K/172/2022)
AJITH P.C.(K/3643/2023)

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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BAIL APPL. NO. 682 OF 2024

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BECHU KURIAN THOMAS, J.

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B.A. No. 682 of 2024

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Dated this the 4^th day of April, 2024

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ORDER

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This is the 3^rd application for regular bail filed under Section 439 of Code of Criminal Procedure, 1973.

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Petitioner is the accused in Crime No.749 of 2022 of Kodakara Police Station, Thrissur District. Petitioner is facing an indictment for the offences under Sections 354, 376(2)(f)(1) (n), 376AB and 323 of the Indian Penal Code, 1860 apart from Section 6(1) r/w Section 5(k)(1)(m)(n) and 10 r/w Section 9(k) (1)(m)(n) of the Protection of Children from Sexual Offences Act, 2012, and Section 92(d) of the Right of Persons with Disabilities Act, 2016 and Section 75 of the Juvenile Justice (Care and Proection of Children) Act, 2015.

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Petitioner is the father of the minor victim, aged 11 years. He is alleged to have committed penetrative sexual assault on his daughter while the mother of the victim was undergoing quarantine due to COVID-19 pandemic. His earlier two applications for bail were dismissed. He has been in custody from 18-11-2022 and hence he seeks regular bail.

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BAIL APPL. NO. 682 OF 2024

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I have heard Sri.K.Rakesh, the learned counsel for the petitioner as well as Sri.Ashi M.C., the learned Public Prosecutor and the learned counsel appearing for the mother of the victim.

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On the earlier two occasions, this Court refused to grant bail for reasons that have been specifically mentioned therein. The petitioner is alleged to have committed a very heinous crime of having sexually abused his 11-year-old daughter. The medical evidence dated 08-11-2022 indicates that the victim was subjected to penetrative sexual assault, as tears were visible in the hymn. Further, the victim had also given a statement under Section 164 of Cr.P.C. that her father had sexually abused her repeatedly. Having regard to the above aspects, this Court refused to grant bail to the petitioner.

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It is, however, pointed out that in the initial medical examination on 04-10-2022, the doctor had not noticed any injury on the private parts of the victim. The doctor had also noticed, in her opinion, that the medical evidence was ‘seemingly inconsistent’ with the allegation of sexual assault. Though the aforesaid aspects may glare at the prosecution case, this Court notices that there are allegations of penetrative sexual assault, which could be established even without any medical evidence. However, in this context, it should be kept in

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BAIL APPL. NO. 682 OF 2024

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mind that there is a matrimonial dispute between the petitioner and his wife/the mother of the victim. Though the contention of the counsel for the petitioner is that the medical evidence was subsequently created, I am of the view that the statement of the victim under Section 164 has specifically referred to the instances of sexual abuse. Therefore, the allegations cannot be said to be without any basis, at least prima facie .

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Notwithstanding the above, the fact that the petitioner was arrested on 18-11-2022 and the circumstance that he has been in custody from the said date till today, i.e; for more than 16 months, and taking into reckoning the existence of the matrimonial dispute between the petitioner and the defacto complainant, I am of the view that the continued incarceration of the petitioner would not be proper. The possibility of an immediate trial is also remote. However, strict conditions ought to be imposed to ensure that the petitioner shall not, under any circumstances, interact with the victim or any of the witnesses.

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In the above circumstances, this application is allowed, and the petitioner shall be released on bail in Crime No.749 of 2022 of Kodakara Police Station, which is now pending consideration as S.C.No.1322/2022 on the files of the

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BAIL APPL. NO. 682 OF 2024

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Additional Sessions Court, Kozhikode on the following conditions:

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(a) Petitioner shall execute a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the learned Session Judge.

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(b) Petitioner shall not enter Kozhikode District where the victim and her mother are currently residing, until conclusion of the trial, except for the purpose of participating in the trial.

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(c) Petitioner shall not, under any circumstances, interact through any means, directly or indirectly; either with the victim or her mother or any of the witnesses of the case until conclusion of the trial.

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(d) Petitioner shall not intimidate, threaten, or influence any of the witnesses in the case.

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(e) Petitioner shall appear before the S.H.O. Kodakara Police Station once every two weeks until conclusion of the trial between 10:00 a.m. and 12:00 p.m.

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This bail application is allowed as above.

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Sd/-

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BECHU KURIAN THOMAS JUDGE

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AJM/4/4/24

Bijoy B.K. v. State of Kerala

Case brief

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Bijoy B.K. v. State of Kerala

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