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2021 Supreme(Online)(KER) 19175
HIGH COURT OF KERALA
M.R.ANITHA, J
ANEESH P.V. – Appellant
Versus
THE STATE OF KERALA – Respondent
Bail Appl./5597/2021
RAAJESH S.SUBRAHMANIAN, V.R.RAJESH
The court affirmed that bail may be denied in cases involving sexual offenses against minors if there is potential for witness intimidation or if the investigation is incomplete.
Headnote:
Bail - Sexual Offences - IPC 377, 506(I), POCSO Act Sections 4, 5, 6, 7, 8, 9, 10, 11 - Court dismissed bail for accused due to concerns over witness intimidation and incomplete investigation.
Fact of the Case:
The petitioner faces allegations of sexually abusing a minor boy, including aggravated assault, and seeks bail after being arrested. The complainant, the boy's grandmother, states the child has difficulty speaking, and the investigation is ongoing with concerns of influence upon the victim.
Finding of the Court:
The court found that due to the petitioner being a neighbor to the victim and potential risks of influencing witnesses, maintaining custody until the investigation is complete was necessary.
Issues: Whether the petitioner should be granted bail in the face of serious allegations implicating sexual assault of a minor and concerns regarding the victim's mental capabilities.
Ratio Decidendi: The court emphasized the importance of balancing the accused's rights with societal interests, particularly in cases of sexual offenses involving minors, where intimidation potential can impact ongoing investigations.
Final Decision: Petition dismissed.
ORDER
Dated this the 31st day of August,2021 Petitioner is the sole accused in crime No.136/2021 of Ulikkal Police Station, Kannur district. The allegation against the petitioner is that from 01.01.2019 to 31.12.2019 the petitioner sexually abused the minor boy for his lust and thereby committed the offences punishable under Sections 377 , 506(I) of IPC and Sections 4 , 5 (k)(m) r/w. Sections 6 , Section 7 r/w. Section 8 , Section 9 (k)(m) r/w. Sections 10 and 11 (vi) of Protection of Children From Sexual Offences Act , 2012.
2. The petitioner was arrested on 21.06.2021 and thereafter he has been under confinement. According to the learned counsel for the petitioner, the entire allegations against the petitioner is baseless and no such incident had actually occurred. The investigation is over and custody was granted and interrogation and recovery is over and no custodial interrogation is required. There is long delay in lodging the complaint and the child has not named any person including the petitioner who abused him. The name of the petitioner has been implicated only out of personal enmity of the uncle of the minor child and it is he who stated that the petitioner has committed the alleged act.
3. The learned Public Prosecutor on the other hand produced copy of Bail objection report filed by the SHO concerned and also the copy of the FIR and FIS. The learned Public Prosecutor also seriously objects in considering the application for bail since the petitioner is the neighbour of the victim boy and there is every chance of intimidating the victim and influencing the witnesses.
4. The learned Public Prosecutor has got a contention that the victim boy is mentally challenged and he has been subjected to aggravated sexual assault by the petitioner, who is a neighbour aged 37 years.
5. According to the learned counsel for the petitioner there is no mental incapacity to the victim boy and he is studying in a regular school. He would contend that the report does not state about the mental retardation and it only states about the IQ level at 80%, and, according to him, only when the IQ level is below 80%, it can be considered as differently abled.
6. There is no convincing material at present before the Court to exactly determine the mental capacity of the victim boy prima facie. The complainant is the grandmother of the victim boy and she clearly narrated about the atrocities committed by the petitioner upon the victim boy including that he had put his organ in the mouth of the victim and told him to hold his organ and also pressed at the private part of the victim boy. The grandmother also stated that the victim boy has got some difficulty in speaking and it is because of that she is giving the complaint. The complaint also would show that inspite of repeated asking by the defacto complainant and others the victim did not reveal the name of anybody and only to the son-in- law of her son Sinoj he disclosed the matters and he informed the Child-line. The report filed by the SHO also would show that the investigation made so far revealed the commission of offence by the petitioner and the child is a differently abled student and hence confinement is very much necessary. The report of the investigating officer also would go to show that the investigation is not over.
7. Admittedly, accused has been arrested on 21.06.2021.
Since the petitioner is the neighbour of the victim and the statement of the defacto complainant-grandmother would show that there is some difficulty for the victim to speak and according to her he is differently abled, the release of the petitioner at this stage may cause hindrance in the further investigation of the case. Being a neighbour, the possibility of intimidating the child also cannot be ruled out. Though the liberty of individual is precious and is to be zealously protected by Courts, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the
