BY AD v. BABU S. NAIR

O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed by the sole accused in Crime No.715 of 2023 of Kuttiyadi Police Station, Kozhikode, registered under Sections 376AB, 376(2)(f) and 376(2)(n), and Sections 5 and 6 of the Protection of Children from Sexual Offences Act.

2. The prosecution allegation is that, the petitioner, who is the step father of the victim girl aged 9 years, sexually assaulted the victim, on different occasions.

3. Learned counsel for the petitioner would submit that, this crime is only an offshoot of the dispute between the petitioner and the mother of the victim girl, who is the second wife of the petitioner. The petitioner married the mother of the victim girl on 25.08.2021. According to him, she was a lady of loose morals, and he caught her red handed with one Mr.Faizal, and thereafter, he pronounced talaq, dissolving his marriage with her. Learned BA No.10378 of 2023 3 counsel for the petitioner produced Annexure-C agreement, which is a tripartite agreement executed between the petitioner, the mother of the victim girl, and Mr.Faizal, with whom the petitioner was alleging illicit connection for the victim’s mother. Annexure-C agreement is dated 10.10.2023, and as per that agreement, the petitioner herein had agreed to return five sovereigns of gold and Rs.2 lakh to the victim’s mother, within three years. Learned counsel for the petitioner would say that, subsequent to Annexure-C agreement, she prepared another agreement on 16.10.2023, and sent it to his whats app, which says that he had to return Rs.6 lakh along with five sovereigns of gold ornaments to her. The date of Annexure-D agreement, and the date of First Information Report in this crime are one and the same i.e. 16.10.2023. So, according to him, since the petitioner refused to sign Annexure-D agreement, she foisted a false case against him, using her 9 year old daughter. BA No.10378 of 2023 4

4. The minor girl gave statement before the police on 16.10.2023 at 10.00 p.m., alleging sexual assault against the petitioner herein, who is her step father. In that statement, she was alleging that the petitioner sexually assaulted her on 06.10.2023 at 8.00 p.m., and she informed that incident to her mother on the very next day i.e. on

07.10.2023. But in the objection to the bail application filed by the second respondent who is the mother of the victim, in paragraph 6, she has stated that, immediately on receiving information about commission of offence, she contacted the local office of the Ruling Political Party at Kuttiyadi, and it was two months prior to the registration of this crime. But, even according to the statement of the victim, the incident occurred ten days prior to the registration of the crime. So, learned counsel for the petitioner would say that it is only a cock-and-bull story, at the instance of the mother of the victim, as the petitioner was not amenable to heed to her financial demands. BA No.10378 of 2023 5

5. Learned Public Prosecutor would point out that, since the offence alleged includes an offence under Section 376AB of IPC, there is a bar under Section 438(4) of the Code of Criminal Procedure, in granting anticipatory bail to the petitioner.

6. Learned counsel for the petitioner would rely on the decision of this Court in xxxx v. State of Kerala & Others; [2023 (4) KLJ 288] for granting bail to the petitioner. Paragraph 16 of the judgment reads as follows; “16. A conjoint reading of Sections 438(4), 60A and 41 of Cr.P.C. and Section 26 of IPC would reveal that the bar under sub-section (4) of Section 438 of Cr.P.C. would attract only in a case where the information received by the police regarding the commission of the offence by the accused is credible and based on that credible information, there are reasons to believe that the accused has committed the offence. In other words, in cases where no prima facie materials exist warranting the arrest of the accused, the bar under sub-section (4) of Section 438 would not attract, and the court has the power to direct a pre- arrest bail. There cannot be any mandate under the law to arrest an innocent.” BA No.10378 of 2023 6

7. Learned counsel for the petitioner would argue that, when no prima facie materials exist warranting the arrest of the accused, the bar under sub-section (4) of Section 438 will not attract. Drawing attention to the factual scenario narrated above, learned counsel would submit that it is a case where, there is no prima facie materials warranting arrest of the accused, and it is only a false case registered against him, at the instance of the mother of the victim.

8. The facts and circumstances, particularly, Annexures-C and D agreements would suggest that, registration of this case at the instance of the mother of the victim cannot be ruled out. If that be the case, it may not be fair to put the petitioner behind the bars. So, this Court is inclined to allow this application on following terms: (i) The petitioner shall surrender before the Investigating Officer on 15.01.2024, and subject himself for interrogation. BA No.10378 of 2023 7 (ii) The Investigating Officer can interrogate and collect all informations and materials within his reach which are relevant for the purposes of investigation. (iii) In the event of arrest, he shall be released on bail on executing bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum to the satisfaction of the arresting officer. (iv) Thereafter, the petitioner shall appear before the investigating officer on all Saturdays starting from

20.01.2024 between 10.00 a.m. and 11.00 a.m. for a period of three months or till the final report is filed whichever is earlier. (v) The petitioner shall not enter the limits of Nadapuram Police Station within the jurisdiction of which the victim girl and her mother are residing. (vi) The petitioner shall not influence or intimidate the victim or her family members either directly or indirectly. BA No.10378 of 2023 8 (vii) The petitioner shall not commit any offence while on bail. (viii) The petitioner shall not leave the limits of Kozhikode District, without getting prior permission from the trial court. (ix) In case of violation of any of the above conditions by the petitioner, the investigating officer can approach the jurisdictional Magistrate to get his bail cancelled, in accordance with law. Sd/- SOPHY THOMAS JUDGE