Raihan vs State Of Kerala

Bechu Kurian Thomas, J

This is an application seeking regular bail filed under section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Petitioner is the third accused in S.C.No.780/2023 on the files of the Fast Track Court, Pattambi, arising out of Crime No.331 of 2023 of Mannarkkad Police Station alleging the commission of offences under Sections 376(2)(n), 376(3), 506(1) r/w Section 34 of the Indian Penal Code, 1860 and Sections 4(2) r/w Section 3(a), 6(1) r/w Section 5(1), Section 17 r/w Section 16 and Section 12 r/w Section 11(i)(iii) of the Protection of Children from Sexual Offence (POCSO) Act, 2012.

The specific allegation against the petitioner does not involve any overt acts that constitute the offence of rape or aggravated penetrative sexual assault. The prosecution alleges that the petitioner had forwarded nude videos of the survivor to the first accused, and thereafter, at the instruction of the said accused handed over a mobile phone to the survivor facilitating a relationship between the survivor and the first accused. It is further alleged that after the first accused developed a relationship with the survivor, he started sending obscene messages and videos to her and thereafter when he came down to India from abroad on 21.02.2022 and 28.03.2022, subjected the survivor to repeated instances of rape and penetrative sexual assault. It is also alleged that the first accused even indulged in a sexual relationship with the second accused in the presence of the survivor, and when she refused to witness the scene, she was assaulted by the first accused, and thereby committed the offences as alleged.

Sri.Bobby Mathew Koothattukulam, the learned counsel for the petitioner vehemently submitted that the petitioner has been roped in as an accused without any basis and solely on false accusations. It was further submitted that except for the alleged introduction of the survivor to the first accused, nothing was alleged against the petitioner in the initial statement given by the victim. However, in the subsequent statements petitioner is alleged to have facilitated the acts of rape and penetrative sexual assault on the survivor. According to the learned counsel for the petitioner, the subsequent statements are all creations of the Investigating Officer and that the petitioner is totally innocent of the offences alleged. The learned counsel further submitted that since the final report has already been filed, there is no question of tampering with the evidence and nor shall he influence any of the witnesses and also that he is willing to abide by any conditions that may be imposed.

Smt.Thushara James, the learned Government Pleader, on the other hand, submitted that, the first accused is still on the loose and that the survivor had specifically alleged that the petitioner, as her maternal uncle, had introduced her to the first accused with an ulterior intention for enabling the first accused to commit rape on the minor. It was further submitted that the petitioner remained aloof from the investigation and a look out circular and a Red Corner Notice were issued. Subsequently, with the assistance of Interpol, the petitioner was apprehended. It was also submitted that, if the petitioner is released on bail, there is every chance that he may influence the witnesses, who are mostly relatives of the petitioner, and further that he may abscond without participating in the trial.

I have considered the rival contentions.

Petitioner was apprehended by the Interpol at Riyadh on 05.11.2024 and thereafter brought down to Kerala and arrested on 11.11.2024. From the said date, petitioner has been in custody.

On a perusal of the statement of the victim, who is none other than the niece of the petitioner, it is noticed that, the main allegation initially alleged was that petitioner had introduced her to the first accused. Though the petitioner is alleged to have taken obscene videos of the survivor and forwarded them to the first accused, there are no allegations of specific overt acts of rape or penetrative sexual assault alleged against the petitioner.

Petitioner has been in custody for more than 30 days. Merely because the first accused has not been arrested the same cannot be a reason to continue the custody of the petitioner. However, the apprehension of the prosecution that the petitioner may influence the witnesses cannot be brushed aside especially since the survivor and some of the other witnesses are close relatives of the petitioner. Nonetheless the said contention cannot by itself be a reason to continue the custody of the petitioner indefinitely. Appropriate conditions can be imposed to prevent any attempt to influence the witnesses. Taking note of the nature of allegations against the petitioner, this Court is of the view that the petitioner ought to be released on bail on stringent conditions.

In the result, this application is allowed on the following conditions:-

(i) Petitioner shall be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

(ii) Petitioner shall co-operate with the trial of the case.

(ii) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he attempt to tamper with the evidence.

(iv) Petitioner shall not commit any similar offences while he is on bail.

(v) Petitioner shall not enter the district where the victim resides, until conclusion of the trial.

(v) Petitioner shall surrender his passport before the jurisdictional court, if not already surrendered. The passport so surrendered shall be retained by the trial court until disposal of the trial.

(vi) Petitioner shall not leave the country or the State without the permission of the jurisdictional Court.

(vii) Applications for modification/changes in the conditions of this bail order, except condition No.vi, can be entertained by the trial court.

In  case  of  violation  of  any  of  the  above  conditions,  the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.