Hamza vs State Of Kerala

The petitioner is the sole accused in Crime No.58/2019 of Kadampuzha Police Station which has been registered for offences punishable under Section 377 of IPC and under Secs.9(f)(l)(m), 10, 11(i), 11(iii) r/w Section 12 of the Protection of Children From Sexual Offences Act, 2012 (POCSO Act).

The prosecution allegation is that the petitioner aged 50 years is a teacher in a Madrassa, where the minor victim boy, aged 8 years used to come there for instructions and that for the period from July 2018 till 16.04.2019, the petitioner/accused had sexually assaulted the minor victim boy by showing porn movies in his mobile, touching his private parts etc. The crime has been registered on 16.04.2019 on the basis of the First Information Statement given by the minor victim boy on the same day and the accused has been arrested on 20.04.2019 and has been under judicial custody since then in connection with the abovesaid crime.

The counsel for the petitioner submits that even going by the admitted allegations in the First Information Statement given by the minor victim boy, it can be seen that there is absolutely no allegation of penetrative sexual/anal intercourse said to have been committed by the accused on the victim. Therefore, the offence under Section 377 of the IPC is not made out and that the main allegations in the First Information Statement is that the accused used to show porn videos to the child and used to touch and fondle his cheeks and the private parts of the boy on many occasions and that the accused used to rub his genitals against the private parts of the boy and that he used to kiss the boy etc. Hence, it is pointed out that even going by the allegations, only the ingredients for the other offences are alleged and that punishment for Section 11 of the POCSO Act is provided as per Section 12 thereof with simple imprisonment which would extend to three years and five and punishment for Section 9 of the said Act is provided as per Section 10 thereof ,which is for a term for not less than 5 years but which would extend to 7 years with fine.

The learned Prosecutor has opposed the plea for grant of bail and submitted that the allegations raised against the petitioner are very serious and grave and that he is holding a high position of trust and status in the society as a teacher of the Madrassa and the boy is hardly the age of 8 years and the petitioner is likely to intimidate the witnesses including the minor victim boy.

After hearing both sides, taking note of the fact that there are no allegations of penetrative sexual assault in this case, and taking into account the nature of the offences actually alleged in the instant cirme, this Court is inclined to grant bail for the petitioner, but after strict conditions to ensure the petitioner does not in any manner taking the opportunity to influence/intimidate the witnesses, including the minor victim boy. So, this Court proposes to order that the petitioner shall not reside anywhere within the territorial limits of the District, where the minor victim boy is residing until the conclusion of the trial. Accordingly, it is ordered that the petitioner shall be released on bail on his executing bond for Rs.40,000/-(Rupees Forty Thousand only) and on furnishing two solvent sureties for the like sum both to the satisfaction of the competent court below concerned.

However the grant of bail will be subject to the following conditions:-

i. The applicant shall appear before the Investigating Officer on every 2nd and 4th Saturdays, at any time between 10 am and 1 pm, for a further period of 3 months or till final report is filed, whichever is earlier.

ii. He shall not intimidate or attempt to influence the minor victim boys, witnesses; nor shall he tamper with the evidence.

iii. He shall not commit any offence while on bail.

iv. The petitioner shall not go anywhere near to the educational institution or residence of the minor victim boys.

v. The petitioner shall not enter into or reside anywhere within the territorial limits of the district where the minor victim boy is residing until the conclusion of trial, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyer/advocate concerned. However, if there is any emergent need for the petitioner to visit the said District, he may do so only with the prior permission of the investigating officer concerned.

If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned shall stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law.

With these observations and directions, the above Bail Application will stand disposed of.