SHANAVAS vs STATE OF KERALA

The petitioner in B.A No.7835/2017 is the 2nd accused in Crime No.960/2017 of the Valiyamala Police Station registered under Sections 377, 372, 373 and 366 (A) r/w Section 34 of I.P.C and under Sections 3(a), 4, 5(1), 6 and 17 of the Protection of Children from Sexual Offences Act, the petitioner in 8001/2017 is the 3rd accused therein, and the petitioner in B.A 7965/2017 is the 5th accused in the said crime. The petitioners seek regular bail under Section 439 of the Code of Criminal Procedure. When the 2nd accused seeks bail for the first time, the others seek bail for the second time. An application for pre-arrest bail filed by the 2nd accused was disposed of by this Court 24.10.2017, with direction to surrender before the Investigating Officer.

Accordingly, he surrendered on 30.10.2017 and was produced before the court below on the same day. His application for regular bail was dismissed by the court

below. The first application brought by the accused Nos.3 and 5 was dismissed by this Court on 31.10.2017. They have been in custody since 23.09.2017.

The victim of offence in this case is a girl aged 17

years. The accused Nos.1 and 2 are none other than her own mother and the step father. The crime involves serious offences like kidnapping, human trafficking, rape etc. The prosecution case is that the accused Nos.1 and 2 handed over the minor girl to different persons for sexual abuse and sexual exploitation after receiving money from them, and accordingly the girl was subjected to such abuse by different persons on different occasions at different places.

The accused Nos.3 and 5 are said to be two among the persons who subjected the girl to sex at different places. In short, they are said to be the customers, whereas the circumstances of the mother and the step father are entirely different as the persons who handed over the minor for sexual exploitation to different persons.

These applications are opposed by the State on the ground that investigation will be adversely affected, if the petitioners are granted bail. The stand of the Government is that in the nature of the allegations and the circumstances, the accused will have to continue in custody till the whole investigation process is over. Of course, as regards the accused Nos.1 and 2, I find that they will have to continue in custody till the whole process is over, because there is every possibility of the victim being influenced or threatened or won over by them, if they are granted bail.

But in the case of the others, I do not find such definite possibilities at this stage. The Police has already collected the required materials as against the accused Nos.3 and 5.

It appears that they are persons, who probably used the girl without knowing her actual age. Even according to the prosecution, the victim was at her running 17 at the time of the incident. The legal aspects of the offences alleged against the accused Nos.3 and 5 cannot be now examined.

Prima facie, they are liable under the POCSO Act, the victim being below the age of 18 years. Anyway, in the circumstances where the Police has collected materials as against them, I feel it appropriate to grant bail to them. But the position and circumstance of the accused Nos.1 and 2 are entirely different. I am not inclined to release the 2nd

accused at this stage for fear that he will try all means possible to torpedo the process.

In the result, B.A No.7835/2017 is dismissed. But the other two applications are allowed. Accordingly, those petitioners (accused Nos.3 and 5) are ordered to be released on bail on their executing bond with two solvent sureties for 50,000/-(Rupees Fifty thousand only) each to the satisfaction of the court below having jurisdiction. Bail is granted on condition that;

a. The petitioners shall report before the Circle

Inspector of Police, Nedumangad between 10.00 am and 11 am on all Mondays for a period of two months.

b. The petitioner shall not enter the limits of the

Valiyamala Police Station for two months.

c. The petitioners shall not in any manner influence or intimidate the witnesses and they shall not have any contact with the material witnesses directly or over telephone or otherwise.

d. The petitioners shall make a security deposit of 10,000/- each in the court below as a further condition for  B.A No.8225 of 2017.

bail.

e. The petitioner shall not involve in any offence of similar nature involving sexual abuse or sexual exploitation or human trafficking under the Indian Penal Code or under the POCSO Act, till trial of the case is over.

f. The petitioners shall not enter the the building, house or the premises where the victim has been residing, till trial of the case is over.

Forward a copy of this order to the Circle Inspector of Police, Nedumangad who will report compliance of the conditions, directly to the court below.