O R D E R

The petitioner is the 1^st accused in Cr.No.362/2018 of Rajapuram Police Station, Kasaragod district, which has been registered for offences punishable under Secs.354, 363, 376 r/w

Sec.34 of the IPC and Sec.3(a) r/w Secs.4, 7, 8, 16 & 17 of the POCSO Act.

2. The brief of the prosecution case is that the petitioner

(A1) on 28.10.2018 at about 1.45 pm had taken the minor victim girl aged 16 years with the held of accused No.2 and without the consent of a lawful guardian from Panathur, the place where victim girl and A1 are residing, in a car to Kanhangad and thereafter brought her to Puthukotte in Tamil Nadu and further that the victim girl had stated that on 29.10.2018, after medication she was in a drowsy mood and had felt that somebody had lying over her body.

3. The learned counsel appearing for the petitioner would point out that the victim has not made any allegations either in her FIS or subsequent statements that the first accused or any other accused had sexual intercourse with her and that therefore the incorporation of the offences u/s 376 of the IPC and Sec. 3 & 4 of the POCSO Act, relating to penetrative sexual assault is not sustainable in the given facts and circumstances of the case. It is pointed out that the petitioner has been arrested on 22.1.2019 and has been under judicial custody since then and counsel for the petitioner would urge that this Court may incorporate strict conditions to ensure that the petitioner will not in any manner influence the witnesses or the course of the investigation and the outcome of the trial process in any manner and that subject to such conditions, this Court may grant regular bail to the petitioner as otherwise the continued detention of the petitioner is not really necessary in the facts of the case. Further it is pointed out the counsel for the petitioner that if the offences u/s 376 of the IPC and Sec. 3 & 4 of the POCSO Act, are excluded then the right to secured statutory bail in terms of the proviso to Sec.167(2) of the CrPC stands already accrued in favour of the petitioner, inasmuch as the Investigating Officer has not filed the final report within the maximum permissible period of 60 days in respect of the other offences.

4. This Court had specifically queried the learned Prosecutor as to whether the lady defacto complainant has given any versions either at the time of furnishing FIS or her subsequent statements as to whether she was subjected to sexual intercourse either by the petitioner (A1) or any other accused, etc. The learned Prosecutor after getting instructions from the Investigating Officer would submit that the version of the minor victim girl does not specifically disclose that she has been subjected to sexual intercourse by any of the accused including the petitioner and that the Investigating Officer has now sought the advice of the District Government Pleader concerned as to the correctness of retaining offences u/s 376 of the IPC and Sec. 3 & 4 of the POCSO Act, etc and that legal opinion of the District Prosecutor is awaited.

5. Having regard to the fact that the petitioner has been under judicial custody since 22.1.2019 and also having regard to the fact that as of now no specific and concrete allegations have been made by the lady defacto complainant/minor victim girl that she has been subjected to sexual intercourse by the petitioner or any of the other accused, and as the period of accrual of statutory bail in terms of the proviso to Sec.167(2) of the CrPC has already arisen if the other offences alone are taken into account, in the facts of the case, this Court is inclined to consider the plea of the petitioner for bail. Accordingly it is ordered that the petitioner petitioner will be released on bail on his executing bond for Rs.40,000/- and on furnishing two solvent sureties for the like sum, each to the satisfaction of the