IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS &

THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 11^TH DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 BAIL APPL. NO. 5157 OF 2022 (Arising out of Crime No. 1097 of 2021 of Ramapuram Police Station, Kottayam Dist.)

PETITIONER/S:

NIYAS M, AGED 27 YEARS, S/O MUHAMMED NIZAR, ARANGATH HOUSE, CHERPPULASSERY P.O., PALAKKAD DISTRICT, PIN - 679503 BY ADVS.

ANAND KALYANAKRISHNAN C.DHEERAJ RAJAN RESPONDENT/S:

STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 OTHER PRESENT:

SRI. S.U.NAZAR-ADDL. PUBLIC PROSECUTOR, SRI. TOM JOSE PADINJAREKKARA-AMICUS CURIAE, SRI. SUMAN CHAKRAVARTHY-AMICUS CURIAE, SMT. SAIPOOJA-AMICUS CURIAE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON 11.4.2023 DELIVERED THE FOLLOWING:

ALEXANDER THOMAS & C.S.SUDHA, JJ.

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B.A.No. 5157 of 2022 (Arising out of Crime No. 1097 of 2021 of Ramapuram Police Station, Kottayam Dist.)

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Dated this the 11^th day of April, 2023

O R D E R

ALEXANDER THOMAS,J.

The aforecaptioned application has been filed under Sec. 438 of the Cr.P.C. seeking anticipatory bail in regard to the involvement of the applicant herein as the sole accused in the instant Crime No. 1097/2021 of Ramapuram Police Station, Kottayam District, which has been registered for offences punishable under Sec. 354A(1)(ii)(iv), 354A(2), 354A(3) of the I.P.C., Sec. 12 read with Sec. 11(ii) (iv) of the Protection of Children from Sexual Offences (POCS) Act, 2012 and Sec. 67B(b) of the Information Technology Act.

2. The brief of the prosecution case is that the sole accused, aged 27 years, with the intention to outrage the modesty of the minor victim girl and satisfy his lust by seeing her nude photos and videos, had regularly contacted her over mobile phone from 1.1.2021 to 31.1.2021 and that the minor victim girl had sent her nude photos and videos to the accused, which he had transmitted through social media. Crime has been registered by the Station House Officer (SHO), Ramapuram Police Station on 27.9.2021 on the basis of the First Information Statement given by the 16 year old minor victim girl.

3. The specific plea of the applicant accused is that he had gone to Dubai on 4.4.2021 for securing employment there and had secured employment in a company. That it is much after the applicant had gone abroad, that the instant crime has been registered on 27.9.2021. Later on enquiries he could learn that the Police has caused issuance of Look Out Notice (LOC) against him and so, he has apprehension that he will be arrested immediately on arrival at the Airport in Kerala. That the applicant is fully willing to come down from Dubai to Kerala and will fully co-operate with the Police investigation and the due process of court, etc.

4. Heard Sri.C.Dheeraj Rajan, learned counsel appearing for the applicant and Sri.S.U.Nazar. learned Public Prosecutor appearing for the respondent State.

5. The issue as to whether an applicant accused of a non-

bailable offence can maintain an anticipatory bail application under Sec. 438(1) of the Cr.P.C. if he is abroad at the time of the filing of the application and other related aspects, were referred for determination by a Division Bench in two Single Bench matters, as per order dated 27.6.2022 in B.A.No.4421/2022 and the order dated 28.6.2022 in B.A.No.4983/2022. Later, when the above matter came up for consideration before the learned Single Judge on 4.7.2022, the pendency of the afore reference cases before the Division Bench was brought to the notice of the learned Single Judge and the learned counsel for the petitioner then submitted that he would also like to address the Division Bench on the questions of law involved therein. Accordingly, the learned Single Judge, as per order dated 4.7.2022 had directed that this case be posed along with B.A.No. 4983/2022 and B.A.No. 4421/2022 for consideration. This case had come up for con