R.Siva vs State

T.V.Thamilselvi, J

The petitioner, who was arrested and remanded to judicial custody on 29.05.2022 for the offences under Sections 5(L)(M)(N) r/w Sec. 17 and 21 (i)(ii) of Prevention of Children from Sexual Offences Act, 2012 (as amended) and under Sec.75 of Juvinile Justice Act, 2000 (as amended) and 506(ii), 312 of I.P.C. in Cr. No.7 of 2022, on the file of the respondent police, seeks bail.

The case of prosecution is that the petitioner along with other accused alleged to have sexually abused the minor girl, who is aged about 21 years and as a result, she became pregnant and aborted. Hence, the complaint.

As per the petition averments, the petitioner/accused No.2 is in judicial custody from 29.05.2022 for the alleged commission of the above offence. According to the prosecution, one Shiva, who arrayed as accused No.2 and also friend of accused No.1 was not arrested by the respondent police and later, he died. Accordingly, the petitioner was arrested only to substitute the accused No.2 Siva.

The learned counsel for the petitioner submitted that he has not at all committed any offence as alleged by the respondent police and due to the death of friend of A1, the petitioner was arrested only to substitute him. He would further submit that the investigation is almost completed and that the petitioner has been suffering incarceration for more than 189 days from 29.05.2022. Hence, he prayed to grant bail to the petitioner.

The learned Government Advocate (Crl. Side) would submit that totally, seven accused in this case, in which, A1 is relative, A2 and A3 are friends of A1 and other four accused are custodial of child of orphanage home. He would submit that the victim is aged about 21 years and she is studying in home and she has no parents. He would also submit that the petitioner also committed sexual assault against the victim child along with some other accused. He would submit that co-accused were released on bail and 164 statement was also recorded. However, he opposed to grant bail to the petitioner.

Considering the fact that the investigation is almost completed, charge sheet was also filed, alleged occurrence said to be taken about 10 years back and also considering the period of incarceration undergone by the petitioner, this Court is inclined to grant bail to the petitioner with certain conditions.

Accordingly, the petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties, each for a like sum to the satisfaction of the learned Special Court for Exclusive Trial of Cases under POCSO Act, Chennai, and on further conditions that:

(a) the sureties shall affix their photographs and left thumb impression in the surety bond and the Magistrate may obtain a copy of their Aadhar card or Bank pass Book to ensure their identity;

(b) the petitioner shall report before the respondent police on every Saturday at 10.30 a.m. for the period of eight weeks and also appear before trial court for every hearing without fail and he shall not have any communication with the victim girl.

(c) the petitioner shall not tamper with evidence or witness either during investigation or trial;

(d) the petitioner shall not abscond either during investigation or trial;

(e) on breach of any of the aforesaid conditions, the learned Magistrate/ Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji Vs. State of Kerala [(2005) AIR SCW 5560]; and;

(f) if the accused thereafter absconds, a fresh FIR can be registered under Section 229-A IPC.