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Abdul Basheer vs State Of Kerala on 6 February, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

WEDNESDAY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940

Bail Appl..No. 388 of 2019

CRIME NO. 729/2018 OF KASARAGOD POLICE STATION, KASARGOD

PETITIONER/3RD ACCUSED:

ABDUL BASHEER, AGED 55 YEARS,
S/O. ABDUL KHADER, THALANGARA KUNNIL,
THALANGARA P.O, KASARAGOD.

BY ADVS.
SRI.M.RAMESH CHANDER (SR.)
SMT.K.A.SANJEETHA
SRI.BALU TOM
SRI.BONNY BENNY

RESPONDENTS/COMPLAINANT/STATE:

STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
KOCHI 682 031.

SRI. AMJAD ALI SR. PP.

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.02.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No. 388 of 2019 2

ORDER

This application is filed under Section 438 of the Cr.P.C.

2. The applicant herein is the 3 rd accused in Crime No.729 of

2018 of the Kasaragod Police Station registered under Section 377 IPC

and Sections 7, 8, 9 and 10 of the Protection of Children from Sexual

Offences Act, 2012.

3. Brief narration of the facts would reveal that on 21.10.2018

a minor boy, aged 15 years, approached the Station House Officer,

Kasaragod Police Station and he gave details of sexual abuse which he

was subjected to by a group of persons. In his complaint, he would

state that he was employed in a shop and on 19.10.2018, while he

and his friend were standing near to the KSRTC bus stand, one

Haneefa persuaded them friend to accompany him. He was shown

some pornographic videos and an attempt was made to sexually abuse

him. Somehow he resisted the advances. He states that he dozed off

and later when he woke up, he realised that he was subjected to

sexual abuse. He further states that sometime in the year 2016, while

he was studying in the VII standard, a man by name Abdulla
Bail Appl..No. 388 of 2019 3

persuaded him to go to the house of one Salim. He alleges that the

aforesaid person also subjected him to sexual abuse. He would further

state that the aforesaid Salim, who was arrayed as the 2 nd accused,

later summoned him and he was asked to go with the applicant

herein. The applicant took him in a car to his residential home and he

is alleged to have subjected the child to sexual abuse. On these

allegations, the subject crime was registered on 21.10.2018. It

appears that on the next day itself, the statement of the child was

recorded by the learned Magistrate under Section 25 of the Protection

of Children from Sexual Offences Act, 2012.

4. The learned Senior counsel appearing for the applicant

would contend that the 2nd accused, against whom specific overt acts

were alleged in the First Information Statement, had approached this

Court and sought for an order of pre-arrest bail. This Court after

considering the submissions, had granted pre-arrest bail. While

granting bail, this Court had taken note of the fact that in his 164

statement, the child had not mentioned about the involvement of the

aforesaid person. This Court had also taken note of the fact that the

victim and his parents had filed an affidavit before the Court of

Session, wherein they had stated that they had not given the details
Bail Appl..No. 388 of 2019 4

of the 2nd accused when the FI statement was furnished. Taking these

aspects into consideration, this Court had granted pre-arrest bail to

the 2nd accused by Annexure-A1 order. According to the learned

Senior counsel, the 2nd accused is the person who had allegedly

handed over the victim child to the applicant and even in the case of

the applicant, the victim has no case in the 164 statement that he is

the person who had subjected him to sexual abuse. As his name has

not been mentioned in the 164 statement, he is entitled to similar

treatment as the 2nd accused is the submission. It is further submitted

that the applicant is a person with clean antecedents and if he is

arrested and detained in the aforesaid Crime, he would be subjected

to ignominy.

5. The learned Public Prosecutor has strenuously opposed the

prayer. He would contend that in the FI statement, the name and

details of the applicant herein were specifically mentioned. He would

refer to the 164 statement and would contend that the applicant

though not named by the victim, he has given sufficient indication that

he was taken to the house of the applicant and was subjected to

sexual abuse.

Bail Appl..No. 388 of 2019 5

6. I have considered the submissions advanced and have gone

through the FI statement and the 164 statement. I am not impressed

with the contention of the learned Senior counsel that the applicant

stands in the same footing as the 2 nd accused. Going by the records, it

appears that there are materials showing his complicity in the crime. A

deeper probe into the allegations are not warranted at this stage.

7. Having regard to the nature and gravity of the allegations,

the role assigned to the applicant herein, the age of the victim and

attendant facts, I am not inclined to interfere with the investigation

and arm the applicant with an order of pre-arrest bail.

The applicant is directed to surrender before the investigating

officer or the court having jurisdiction and seek regular bail. If an

application for bail is preferred, the same shall be considered and

orders shall be passed expeditiously and on its merits.

This application is dismissed.

SD/-

RAJA VIJAYARAGHAVAN V.,
JUDGE
//TRUE COPY// P.A TO JUDGE
IAP

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