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2023 Supreme(Mad) 1927
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G.K. ILANTHIRAIYAN, J.
Murugan – Appellant
Versus
State Rep.by The Inspector of Police, Kanyakumari – Respondent
CRL OP(MD). No. 11311 of 2023
Decided On : 23-06-2023
For the Petitioner:M/s. B. Muneeswaran, Advocate. For the Respondent: R.M. Anbunithi, Additional Public Prosecutor.
The court emphasized the importance of following proper procedures, including the recording of statements of rape victims by a lady magistrate, and considered the period of incarceration in granting bail.
Headnote:
Bail - POCSO Act - The court granted bail to the accused, who was the father of the victim, in a case involving offences under sections 376 (AB), 506(i) of IPC and section 5(m), 5(n), 5(l) and 6 of POCSO Act. The court imposed several conditions for the bail.
Fact of the Case:
The accused, who was the father of the victim, sought bail in a case involving offences under sections 376 (AB), 506(i) of IPC and section 5(m), 5(n), 5(l) and 6 of POCSO Act. The victim was a 6-year-old child, and the prosecution alleged that the accused had committed penetrative sexual assault on his own daughter and threatened her.
Finding of the Court:
The court considered the statement of the victim recorded under Section 164 of Cr.P.C and found that it revealed discrepancies. The court also noted that the victim's statement was recorded by a male magistrate, contrary to the provisions of 164 Cr.P.C. The court granted bail to the accused, imposing specific conditions.
Issues: The issues involved the credibility of the victim's statement, the recording of the statement by a male magistrate, and the appropriateness of granting bail in a case involving serious offences under the POCSO Act.
Ratio Decidendi: The court's decision was influenced by the discrepancies in the victim's statement, the improper recording of the statement by a male magistrate, and the need to consider the period of incarceration. The court also emphasized the importance of following proper procedures in recording the statement of a rape victim.
Final Decision: The court granted bail to the accused, subject to specific conditions, and directed the Director General of Police to issue necessary directions to ensure the proper recording of statements of victims under section 164 of Cr.P.C.
JUDGMENT
(Prayer: To enlarge the petitioner/accused on bail in special sessions case no.38/2023 in crime no.12/2023 on the file of respondent police.)
The Court made the following order:
The petitioner /Accused who was arrested and remanded to judicial custody on 17.04.2023 for the offences under sections 376 (AB), 506(i) of IPC and section 5(m), 5(n),5(l) and 6 of POCSO Act in Crime No.12 of 2023 (Spl.S.C .No.38 of 2023 by the learned Sessions Judge, Special Court for Exclusive trial of cases under POCSO Act, Kanniyakumari at Nagercoil )on the file of the respondent police seeks bail.
2. The victim is aged about 6 years and the petitioner is aged about 34 years. The case of the prosecution is that the accused who is the father of the victim had committed penetrative sexual assault on his own daughter and threatened her. Hence the case.
3. Heard both sides and perused the materials available on record including the First Information Report and the statement of the victim recorded under Section 164 of Cr.P.C.
4. It is seen that the petitioner is the father of the alleged victim. A perusal of the statement of the victim recorded under section 164 of Cr.P.C reveals the fact that nothing had happened as alleged by the prosecution. She further submitted that as per the instructions given by her aunt she deposed and as such the First Information Report came to be registered and subsequently he was arrested and remanded to judicial custody. It is seen that the petitioner used to beat the child and therefore the complaint has been lodged as against the petitioner. Now the respondent police completed investigation and filed final report and the same has been taken cognizance in Spl.S.C .No.38 of 2023 by the learned Sessions Judge, Special Court for Exclusive trial of cases under POCSO Act, Kanniyakumari at Nagercoil.
5. Taking into consideration the facts and submissions made by the learned counsels and also the period of incarceration this court is inclined to grant bail to the petitioner , subject to the following conditions:
[a] Accordingly, the petitioner is ordered to be released on bail on condition to execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties each for a like sum to the satisfaction of the learned Sessions Judge, Special Court for Exclusive trial of cases under POCSO Act, Kanniyakumari at Nagercoil and on further conditions that:
[b] the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the Magistrate may obtain a copy of their Aadhar card or Bank Pass Book to ensure their identity.
[c] the petitioner shall report before the learned Sessions Judge, Special Court for Exclusive trial of cases under POCSO Act, Kanniyakumari at Nagercoil on all working days at 10.30 A.M. and 5.30P.M., for a period of two weeks and thereafter on all hearing dated without fail.
[d] the petitioner shall not commit any offences of similar nature.
[e] the petitioner shall not abscond either during investigation or trial.
[f] the petitioner shall not tamper with evidence or witness either during investigation or trial.
[g] On breach of any of the aforesaid conditions, the learned Judicial Magistrate/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon''ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560].
[h] If the accused thereafter absconds, a fresh FIR can be registered under Section 229A IPC.
6. From the reading of the statement of the victim recorded under section 164 of Cr.P.C revealed that it is in the form of question and answer, which is against the provisions of 164 Cr.P.C. That apart statement was recorded by a male magistrate. The Hon
