The court emphasized the statutory bar on granting anticipatory bail in cases involving allegations under IPC section 376(3) and relied on victim statements and expert panel reports to establish a prima facie case.

ORDER :

The petitioner is the accused in Crime No.914/2022 of Aryanad Police Station. The offences alleged against the petitioner are under Sections 376(2)(f), 376(3) of IPC and also under Section 3(b) read with Section 4(2), Section 9(1)(n) read with Section 10 of POCSO Act, 2012.

2. The aforesaid crime was registered based on the information furnished by a minor girl, aged 13 years, who is none other than the daughter of the petitioner. At the time of the incident, she was studying in the 9th standard. The petitioner is residing separately due to a family dispute. One day during the month of December 2021, while the victim was studying in 8th standard when no one else was there in the house, the petitioner trespassed into the house, grabbed the child and kissed her lips with sexual intention. It is also alleged that, some months later, when no one else was at home, the accused entered the house, took the child, pulled off her dress, and caught hold of her breast. It is also alleged that he put his hands inside her panties and pressed on her private parts, thereby causing pain to the child. A similar incident was repeated on 15.10.2022 as well. The crime was registered in such circumstances. As the petitioner apprehends arrest, this application for anticipatory bail is submitted.

3. Heard Sri.M.R.Sarin, learned counsel appearing for the petitioner and Smt.Seetha S., learned Public Prosecutor for the State. Even though notice of this bail application was furnished to the victim/defacto complainant, there is no appearance as of now.

4. The learned counsel for the petitioner submits that the petitioner is innocent of all the allegations. According to him, certain matrimonial disputes are pending between the petitioner and the mother of the defacto complainant; therefore, a complaint with false allegations was submitted against the petitioner. The learned counsel places reliance upon the various proceedings pending before the Family Court, Nedumangad, such as O.P.(Div) No.656/2022, M.C. No.111/2022, filed by the mother of the defacto complainant for divorce and maintenance before the Family Court, Nedumangad and also M.C. No.36/2019 submitted by the mother before the Judicial First Class Magistrate Court – I, Nedumangad, under the provisions of Protection of Women from Domestic Violence Act. It is pointed out that, right from the year 2019, there was a protection order against the petitioner, passed by the Judicial First Class Magistrate Court -I, Nedumangad under the provisions of the Domestic Violence Act and therefore, the acts which were allegedly committed by the petitioner during the year 2021 and 2022 were highly improbable. According to him, he was not at all residing along with the defacto complainant at the relevant time consequent to the order passed by the Judicial First Class Magistrate Court I, Nedumangad in M.C. No.36/2019. The learned counsel also places reliance upon the decision rendered by this Court in Xxxx v. State of Kerala [2023 (2) KHC 339], wherein this Court observed that the courts have to adopt a cautious approach while dealing with the matters in respect of the sexual assaults allegedly committed upon the children by their father when serious matrimonial disputes are being fought between the spouses seriously.

5. On the other hand, the learned Public Prosecutor would oppose the aforesaid application. According to the learned Public Prosecutor, even the application for anticipatory bail is not maintainable because the offence alleged is under Section 376(3) of the IPC, and as per subsection 4 of Section 438 of the Cr.P.C, no anticipatory bail can be granted when such an offence is alleged. Besides the same, it is also pointed out that the victim made specific allegations in the First Information Statement and also in her statement under Section 164 Cr. P.C, against the petitioner. The victim was examined by an expert panel consisting of a Psychiatrist, a Clinical Psychologist and a counsellor. Before the ex