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Shinas vs State Of Kerala on 9 April, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941

Bail Appl.No. 2450 of 2019

AGAINST THE ORDER/JUDGMENT IN CRMP 1058/2019 of
ADDITIONAL DISTRICT COURT, THRISSUR DATED 27-03-2019

CRIME NO. 2130/2017 OF Town East Police Station ,
Thrissur

PETITIONER/S:

SHINAS, AGED 20 YEARS
S/O.NASAR, THERUVATH VEEDU, SEETHARAM MILL
LANE, POONKUNNAM, TRISSUR.

BY ADV. SRI.BLAZE K.JOSE

RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.

2 ASSISTANT COMMISSIONER OF POLICE,
THRISSUR CITY- 680001.

OTHER PRESENT:
SRI.AMJAD ALI, PUBLIC PROSECUTOR

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
09.04.2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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Bail Appl..No. 2450 of 2019

ALEXANDER THOMAS, J.
—————————–
B.A.No.2450 Of 2019
———————————
Dated this the 9th day of April, 2019.

ORDER

The petitioner is the newly added sole accused in Crime

No.2130/2017 of Thrissur Town East Police Station, and the

offences alleged against him are under Sec.376 IPC and Secs.3 4

of POCSO Act, 2012. The petitioner has been arrested in

connection with this crime on 25.3.2019 and is under judicial

custody since then.

2. After hearing both sides, it appears that this case has

got the trapping of a “snake and ladder” game, to say the least.

According to the petitioner, the minor victim girl, who was aged 17

plus at the relevant time, was having a love affair with one of the

close friends of the petitioner-accused and all 3 of them knew each

other and that she voluntarily wanted to elope with that boy and

the petitioner was requested to assist them in that regard and

accordingly, they had taken the minor victim girl in a taxi car and

presumably on the complaint of the parents and family members,

the Police had arrested the petitioner on 29.12.2017 and in that,
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Bail Appl..No. 2450 of 2019

Crime No.2124/2017 of Thrissur Town East Police Station, was

registered, wherein the petitioner herein and the driver of the taxi

car have been arrayed as 2 accused persons therein and offence

initially alleged in that crime was one under Sec.366A of the I.P.C.

Later, after investigation, the Police had deleted the offence as per

Sec.366A of the I.P.C and had newly added the offence under

Sec.363 of the I.P.C in Crime No.2124/2017. As stated earlier, the

petitioner was arrested in relation to Crime No.2124/2017 on

29.12.2017 and later he was released on 6.6.2018 in relation to that

crime. It is pointed out that no action was taken by the Police

against the lover boy of the girl.

3. At the time when the Police had detained the

petitioner, the minor victim girl on 29.12.2017 had given a

statement which later led to the registration of Crime

No.2130/2017 of Thrissur Town East Police Station. The

Investigating Officer had also taken the statement of the minor

victim girl in this case. It appears that the minor victim girl had

gave the statement not only before the Police but also before the

learned Magistrate under Secs.164 of the Cr.P.C, stating that since

2010 she was consistently sexually abused and raped by her
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Bail Appl..No. 2450 of 2019

maternal grandfather, etc. Based on the said statement of the

minor victim girl, Crime No.2130/2017 of the same Police Station

(Thrissur Town East Police Station) was also registered in which

initially the sole accused arrayed therein was the abovesaid

maternal grandfather of the minor victim girl and the offence

alleged was one under Sec.376 of the IPC. The maternal

grandfather (accused therein) was arrested and he was under

judicial custody for a long time and later he was released. Now, it

appears that very recently some time in March, 2019, the minor

victim girl has given yet another statement before the Police in

Crime No.2130/2017 as well as before the learned Magistrate

under Sec.164 Cr.P.C stating that her earlier allegations that the

maternal grandfather had raped her are wrong and she was

persuaded by the petitioner herein to make such false allegations

against the maternal grandfather and the petitioner had threatened

that he would use her intimate video pictures and under that

threat, she was forced to have sexual intercourse with the

petitioner at his instance. Based on the new version of the minor

victim, the Police has deleted the name of the maternal grandfather

as the sole accused in Crime No.2130/2017 and has newly added
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Bail Appl..No. 2450 of 2019

the name of the petitioner as the sole accused in Crime

No.2130/2017 and the offence alleged against him is one under

Sec.376 of the IPC as well as Secs.3 4 of the POCSO Act, 2012.

The learned counsel for the petitioner would vehemently urge that

earlier, based on the version of the minor victim girl that she was

frequently sexually abused by her maternal grandfather which led

to Crime No.2130/2017 towards the end of December, 2018 (after

the registration of the aforementioned other Crime No.2124/2017,

etc.), the Police was convinced that the maternal grandfather has

committed the abovesaid offence and therefore the Police had

arrested him and had vehemently opposed his release on bail and

he was under judicial custody for quite some time and later he was

granted regular bail. At this very late stage, some time in March,

2019 or so, the minor victim has made a volte face and has made

new allegations which are contrary to her earlier allegations and

stated that her grandfather was innocent and the petitioner was

responsible to make false allegations against the maternal

grandfather and that the petitioner had threatened that he would

use the intimate video and under that threat, she was forced to

have sexual intercourse with the petitioner at a time when she
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Bail Appl..No. 2450 of 2019

was a minor.

4. After hearing both sides, this Court is constrained to

hold that there are highly suspicious circumstances in relation to

arraying the petitioner as the new sole accused in Crime

No.2130/2017 in which the maternal grandfather of the minor girl

was made as accused earlier. That apart, prima facie, this Court is

of the view that serious procedural irregularities have been

committed by the investigating agency in the peculiar and strange

procedure of not only deleting the sole accused (maternal

grandfather in Crime No.2130/2017) from the accused array and

has arrayed the petitioner herein as the sole accused on an entirely

different set of factual allegations. It would be understandable if in

a case where all the accused are not identifiable and the Police

could identify one of the accused and arrayed him as an accused

and thereafter on proper investigation if it is found that the said

person is not in any manner involved in the said crime, the Police

could take steps to delete the earlier accused from the accused

array and include the persons concerned in the accused array of

that crime on the same set of allegations or allegations in

continuation thereof. Therefore, the present procedure of deleting
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Bail Appl..No. 2450 of 2019

the maternal grandfather from the sole accused array and to

include the petitioner herein as the new sole accused in the very

same crime and that too on an entirely different matrix of factual

allegations to say the least is improper. If at all the Police was

convinced that the maternal grandfather is innocent as now

claimed by them then ordinarily what is expected is that the Police

authorities should have concluded the investigation in the crime

and should have filed a refer report before the competent court

below concerned so that the crime proceedings as against the

earlier accused, is terminated in the manner known to law and

subject to other procedural formalities of the court below

concerned, issuing notice to the victim and then passing final

orders on the acceptability or otherwise of the said refer report in

terms of the provisions envisaged in the sub-sections of Sec.173 of

the Cr.P.C. So also, if the Police was really convinced that the new

allegations made by the minor victim girl that the petitioner had

raped her at a time when she was a minor and it was the petitioner,

who had persuaded her to make false allegations against her

maternal grandfather, then what is expected is that the Police

authorities should have registered 2 fresh FIRs arraying the
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Bail Appl..No. 2450 of 2019

responsible person concerned as accused therein and one crime

could have dealt with allegations on the basis of relevant provisions

of the Cr.P.C dealing with making of false allegations before the

Investigating Officer including the Police and other crime could

have been for the new set of allegations in the matter of alleged

commission of rape and sexual intercourse by the accused on a

minor by including appropriate offence under the IPC and POCSO

Act, 2012. Instead of straight forward procedure, bizarre attempts

have been adopted by the Investigating Officer. This Court is not

in a position to go into the full details thereof. Since the matter is

consideration of a bail application, there may not be any necessity

for this Court to make any detailed probe in this matter. However,

this Court does not intend to leave the matter there, as it requires

consideration by a superior Police official to examine whether the

procedure adopted was right or wrong and if it is found to be

wrong to take immediate remedial measures to not only to ensure

procedures are strictly adhered, but also to ensure that innocent

persons are not made as accused and at the same time to ensure

that guilty persons are not let off the hook by virtue of their

monetary or other influence.

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Bail Appl..No. 2450 of 2019

5. The petitioner has now undergone judicial custody

since 25.3.2019 in this crime. Having regard to the abovesaid facts

and circumstances, this Court has no hesitation to hold that

continued detention of the petitioner is not necessary and that he

could be granted regular bail but subject to stringent conditions to

ensure the integrity of the investigation process so that the

petitioner does not make attempts to influence or intimidate the

alleged victim and her family members. Accordingly, it is ordered

that the petitioner/accused shall be released on bail on his

executing a bond for Rs.40,000/- (Rupees Fourty Thousand only)

and on his furnishing 2 solvent sureties for the like sum each to the

satisfaction of the competent court concerned. However, t he above

order shall be subject to the following conditions:

(i). The petitioner will report before the Investigating
Officer concerned at any time between 10:00 a.m.
and 12:00 noon on every 2nd and 4th Saturdays for
the next 4 months. Thereafter the petitioners shall
report before the Investigating officer as and when
directed by him.

(ii). The petitioner shall not intimidate or attempt to
influence the defacto complainant/victim, witnesses;
nor shall tamper with the evidence.

(iii). The petitioner shall not commit any similar offence
while on bail.

(iv) The petitioner shall not go anywhere near to the
residence of the minor victim or her family members
and further that the petitioner shall not enter into or
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Bail Appl..No. 2450 of 2019

reside anywhere within the limits of the Police Station
within whose limits the minor victim girl is residing,
until the conclusion of the trial, except for the limited
purpose of reporting before the Investigating Officer in
this case or in any other crimes and for attending to
the courts in connection with this case or any other
cases or for contacting his advocate/lawyer, etc.

In case of violation of any of the above conditions, the

jurisdictional Court concerned will stand hereby empowered to

consider the application for cancellation of bail, if required, and

pass appropriate orders in accordance with the law.

6. The abovesaid observations made by this Court

hereinabove regarding the procedural aspects touching upon the

aspect relating to Crime No.2124/2017 are only prima facie in

nature and this Court is not making any final pronouncement on

such issues. It is for the competent superior Police authorities to

immediately consider whether the matter requires any interdiction,

if they find that there are procedural flaws. It is only thereafter

that this Court need to examine the abovesaid issues for rendering

any final opinion on such matters. In view of the abovesaid factual

aspects, it is ordered that the State Police Chief will immediately

call for the Case Diary files in Crime Nos.2130/2017 and

2124/2017, both of Thrissur Town East Police Station and will

ensure that the matter is entrusted to a Senior Police Officer, not
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Bail Appl..No. 2450 of 2019

below the rank of Superintendent of Police, who will examine the

entire matters and may make necessary enquiries thereof if found

proper. Thereafter will make a comprehensive report before the

State Police Chief about various aspect touching upon these crimes.

Thereafter the matter could be considered by the State Police Chief

on his own or entrust the matter to any other Police Officer not

below the rank of Inspector General of Police, who will then

consider and decide whether there are procedural flaws in relation

to the abovesaid stand taken in Crime No.2130/2017 and also in

relation to the aspects in Crime No.2124/2017 and may thereafter

consider whether further investigation of these crimes are to be

entrusted to a different Police officer so that investigation could be

carried on fairly and dispassionately so that it will elicit full

confidence about the its fairness and integrity. The State Police

Chief/Inspector General of Police concerned, as the case may be,

should also seriously examine whether there are any extraneous

influences in the strange new developments and should bear in

mind that the investigation process should elicit full confidence of

the public about its fairness and integrity. Necessary decision in

that regard should be taken by the State Police Chief/Inspector
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Bail Appl..No. 2450 of 2019

General of Police, as the case may be, without much delay,

preferably within a period of 6-8 weeks from the date of production

of a copy of this order. After completing the formalities in this

regard, the State Police Chief will ensure that report is filed on his

behalf, through competent authorised officer before this Court

stating about the various steps taken in compliance with the above

directions. The learned Prosecutor will forward copies of this order

to the State Police Chief for necessary information and further

action. Sri.Amjad Ali, learned Prosecutor will make a detailed

discussion about these matters, with the State Police Chief.

With these observations and directions, the above

Application stands disposed of.

Sd/-

ALEXANDER THOMAS,
Judge.

bkn/-

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