Kerala High Court

Unknown vs Present on 25 June, 2018

Author:
Sunil Thomas

Bench:
Sunil Thomas

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

MONDAY, THE 25TH DAY OF JUNE 2018 / 4TH ASHADHA, 1940

Bail Appl..No. 4054 of 2018

(CRIME NO. 548/2018 OF OTTAPALAM POLICE STATION , PALAKKAD)

PETITIONER(S)/ACCUSED

1 SANAL KUMAR K.,
AGED 36 YEARS, S/O.K.M.UNNIKRISHNAN,
ANASWARA, KOOTHAKKURISSY, PANAMANNA P.O.,
OTTAPPALAM, PALAKKAD DISTRICT-679 501.

2 UNNIKRISHNAN K.M.,
AGED 67 YEARS, ANASWARA, KOOTHAKKURISSY,
PANAMANNA P.O., OTTAPPALAM,
PALAKKAD DISTRICT-679 501.

3 RADHA,
W/O.UNNIKRISHNAN K.M., ANASWARA, KOOTHAKKURISSY,
PANAMANNA P.O., OTTAPPALAM, PALAKKAD DISTRICT-679 501.

BY ADV.SRI.M.T.SURESHKUMAR

RESPONDENT(S)/COMPLAINANT:

STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.

R BY PUBLIC PROSECUTOR SMT.V.SREEJA

THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19-06-2018,
THE COURT ON 25/6/2018 PASSED THE FOLLOWING:

SUNIL THOMAS, J.
------------------
B.A.No.4054 of 2018
------------------
Dated this the 25th day of June, 2018

ORDER

The accused in Crime No. 548/2018 of Ottappalam Police

station for offences punishable under
sections 7
&
of POCSO Act

2012 and under
section 75
of the Juvenile Justice Care and Protection

of Children Act 2015, are the petitioners herein.

2. Admitted facts are as follows; The first petitioner had married

the defacto complainant on 27/4/2009. Thereafter, they resided

together for some time. The second petitioner is his father and the

third petitioner is his mother. A girl child was born, who is aged 7

years now. Matrimonial dispute arose between the parties. It is stated

that, on 5/9/2017, the wife left the matrimonial home. The child was

in the custody of the petitioners till 15/9/2017, on which day the child

was entrusted with the parents of the defacto complainant. The

present complaint was laid by the wife alleging that the first

petitioner had sexually abused the seven year old girl on few days

between 5/9/2017 to 15/9/2017 at the matrimonial home and other

places. Apprehending arrest, the petitioners herein have approached

BA No. 4054/2018 2

this court.

3. The specific contention of the petitioners herein is that,

the defacto complainant was a quarrelsome person and matrimonial

relationship became incompatible. It was alleged that, the defacto

complainant had developed a close intimacy with one doctor who

was younger to her. She was found making secret audio and video

calls to him over the mobile phone. When the relationship went

beyond a limit, the husband intervened and she was warned. It was

later understood that she continued to maintain even physical

relationship with him. On being confronted with materials, she is

stated to have abandoned the child and left the matrimonial home

on 5/9/2017. Thereafter, the first petitioner herein entrusted the

child to the defacto complainant and her parents, considering the

education of the child. The first petitioner herein initiated

matrimonial proceedings, including an application for custody of the

child. The present complaint was filed belatedly raising absolutely

false allegations with the intention of denying him the custody of

the child. It was vehemently contended that, the first petitioner

herein has not committed any sexual abuse on the minor girl and it

was purposefully and belatedly set up.

4. Annexure A1 is a copy of the petition in O.P.(HMA) No.

649/2017 dated 27/10/2017 filed by the first petitioner herein before

the Family Court, Malappuram. He claimed divorce on the ground of

BA No. 4054/2018 3

adultery of the defacto complainant with the doctor, who was

arrayed as the second respondent in that O.P. It was alleged therein

that, she was having continuous physical relationship with that

doctor and was caught with evidence. Annexure A2 is a copy of

O.P.( G & W) No. 356/2018 filed by the first petitioner herein on

24/5/2018 before the Family Court, Malappuram claiming custody of

the child. Thereafter,Crime was got registered by the wife at

Bangalore as Crime No. 703/2017 on 11/12/2017 against the

petitioners herein alleging matrimonial cruelty. The first petitioner

sought bail which was granted by Annexure A3 order. It is seen

that, she alleged that the petitioners herein committed acts of

matrimonial cruelty and demanded dowry and thereby committed

offences punishable under
section 498A
IPC and the provisions of

the
Dowry Prohibition Act
. The petitioner was granted anticipatory

bail. Annexure A5 is a complaint filed by the defacto complainant

before the State Commission for Protection of Child Child Rights of

Kerala and Karnataka, with copies to the various authorities. It was

alleged that, the father-in-law of the defacto complainant had made

sexual advances towards her. She alleged that, in-laws had

administered various medicines on her body. It was also alleged that,

the child was physically assaulted by the petitioners during the

period from 5/9/2017 to 15/9/2017. There is an allegation that, the

grandfather used to beat her on her groin and grand mother had

BA No. 4054/2018 4

beaten the child with a chapathy rolling pin. Annexure A6 is the

complaint No.20/2018 filed on 24/1/2018 by the defacto complainant

under the provisions of the
Protection of Women from Domestic

Violence Act
.

5. The above documents clearly show that, at no point of time

earlier, the defacto complainant had a case that the child was

sexually abused by the father. Even though physical assault is

alleged against the petitioners, there was absolutely no reference

anywhere that the child was subjected to sexual abuse by the father.

6. It seems that, for the first time such a complaint is seen

raised in the present crime(Crime No.548/2018 of Ottappalam Police

station). Crime was thereupon registered for offences punishable

under
sections 7
&
of POCSO Act and
Section 75
of the Juvenile

Justice Care and Protection of Children Act 2015. The crux of the

allegation in the FIS is that, during the period when the child was in

the custody of the petitioners, the father of the child used to give her

a bath. He used to undress her, remove his dress and give her bath.

It was stated that in the course of bathing her, the first petitioner

used to tickle her. The child has stated that, she did not like boys

giving her bath. Pursuant to it,
section 164
Cr.P.C.statement of the

victim was also recorded, which is substantially in tune with FI

statement.

7. It is pertinent to note that the only allegation raised against

BA No. 4054/2018 5

the first petitioner is as above. Even if the entire statement made

by the child is taken at its face value, crucial question that arises is

whether the father had any sexual intent while giving the daughter a

bath. This has to be appreciated in the background that the

allegation comes only at a highly belated stage, when the father

himself had sought custody of the child. No explanation is

forthcoming for the delay in giving complaint. Hence, the question

to be investigated by the police is only whether the first petitioner

herein with sexual intention had committed any act. For that,

custodial interrogation does not appear to be warranted. It is also

clear that, in such a very strained matrimonial relationship a

belated allegation of this nature has to be considered carefully and it

may not be safe to order custodial interrogation.

8. Having regard to the above, I am inclined to grant benefit of

anticipatory bail to the petitioners herein subject to the following

conditions:

i). Petitioners shall appear before the investigating officer

within ten days from today and shall undergo interrogation.

Thereafter, if they are proposed to be arrested, they shall be

released on bail on each of the petitioner executing a bond for a sum

of Rs.50,000/-(Rupees fifty thousand only) with two sureties for the

like sum each.

BA No. 4054/2018 6

ii). They shall appear before the Investigating Officer as and

when called for and co-operate with the investigation.

Anticipatory Bail Application is allowed.

Sd/-

SUNIL THOMAS
Judge
dpk

/true copy/ PS to Judge.