Prabakaran v. The State Rep by Its,

JUDGMENT This appeal has been filed challenging the dismissal of the bail application filed by the appellant.

¶2The appellant is facing trial for the offences under Sections 506(i) of the IPC, 5(l), 5(n), 5(j)(ii), 6 of POCSO Act, 2012 r/w 3(1)(w)(i), 3(2)(v) of SC/ST (POA) Act in Spl.S.C.No.110 of 2023 on the file of the learned Sessions Judge, Special Court for exclusive Trial of Cases under POCSO Act, Vellore.

¶3The allegation against the appellant is that, he is the uncle of the victim girl i.e., he is the sister's husband of the victim's mother; that on

05.03.2023 at night, when the victim along with her brother stayed in the house of her aunt, the wife of the appellant, the appellant came near the victim and took her outside the room and removed the dress and committed penetrative sexual assault and thereafter, threatened her with dire consequences; that she did not report the incident to anybody due to fear and since she suffered from stomach ache, she told her mother on 01.06.2023 Page No.2 of 9 about the occurrence and a scan was taken and she was found to be pregnant.

¶4The appellant filed a bail application before the trial Court and the same was dismissed by the learned Sessions Judge, Special Court for exclusive Trial of Cases under POCSO Act, Vellore, by order dated

08.10.2024 in Crl.M.P.No.1418 of 2024, on the ground that seven witnesses have been examined and considering the gravity of the offence, the appellant is not entitled to bail.

¶5Though the victim/3rd respondent was served, none had entered appearance. Hence, this Court appointed Mr.V.Perarasu, as legal aid counsel for the 3rd respondent/victim.

¶6Heard Ms.E.Thiyaga, learned counsel for the appellant, learned Government Advocate (Crl.Side) appearing for the State/respondents 1 and 2 and Mr.V.Perarasu, learned counsel for the 3rd respondent/victim. Page No.3 of 9

¶7The learned counsel for the appellant would submit that the appellant is in custody from 04.06.2023; that his further custody is not necessary for the purpose of investigation; that the case against him is false; and that he would abide by any stringent condition imposed for grant of bail.

8.(i) The learned Government Advocate (Crl.Side) appearing for the State/respondents 1 and 2, on instructions would submit that the accused/appellant had committed a serious offence; seven witnesses have already been examined including the victim and the mother of the victim; that totally twenty-two witnesses have been cited by the prosecution; and hence, the appeal may be dismissed.

(ii) To a specific query put by this Court as to whether the foetus of the victim was sent for DNA analysis, the learned Government Advocate would submit that it was not sent for examination. Page No.4 of 9

¶9Mr.V.Perarasu, learned counsel for the 3rd respondent/victim submitted that the offence committed by the appellant is grave in nature; that the victim became pregnant due to the act of the appellant; and that considering the nature of the relationship, this Court may dismiss the appeal, since the appellant is likely to tamper with the witnesses.

¶10Considered the rival submissions and perused the materials available on record.

¶11The appellant was arrested on the complaint given by the defacto complainant on 04.06.2023. The alleged occurrence is said to have been taken place in the month of March, 2023. The victim had not reported about the occurrence to anybody for about three months. Seven witnesses have already been examined by the prosecution so far, including the victim. The appellant cannot be kept in custody for an indefinite period, as he has a right to defend himself effectively in the trial.

¶12Therefore, considering the period of incarceration, the fact that the victim has already been examined by the trial Court and considering the Page No.5 of 9 other facts and circumstances, this Court is of the view that the appellant can be enlarged on bail, on conditions.

¶13Accordingly, the appellant/accused is ordered to be released on bail subject to the following conditions:

(i) The appellant shall execute a bond for a sum of Rs.10,000/- (Rupees ten thousand only) with two sureties each for a like sum to the satisfaction of the learned Sessions Judge, Special Court for exclusive Trial of Cases under POCSO Act, Vellore;

(ii) The appellant and the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the trial Court may obtain a copy of their Aadhar card or Bank pass Book and mobile numbers to ensure their identity;

(iii)the appellant shall appear before the trial Court on all hearings;

(iv)the respondent police is directed to ensure that there is no threat to the life and safety of the de-facto complainant. In the event of any threat, Page No.6 of 9 appropriate steps to be taken.

(v)the appellant shall not commit any offences of similar nature;

(vi)the appellant shall not abscond either during investigation or trial;

(vii)the appellant shall not tamper with evidence or witness either during investigation or trial;

(viii)on breach of any of the aforesaid conditions, the learned Sessions Judge/Trial Court is entitled to take appropriate action against the appellant in accordance with law as if the conditions have been imposed and the appellant released on bail by the learned Sessions Judge/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560];

(ix)if the accused thereafter absconds, a fresh FIR can be registered under Section 229A IPC. Page No.7 of 9

¶14In view of the above, the impugned order, dated 08.10.2024 in Crl.M.P.No.1418 of 2024 passed by the learned Sessions Judge, Special Court for exclusive Trial of Cases under POCSO Act, Vellore, is set aside and the Criminal Appeal is allowed.

13.12.2024 Index : Yes/No Speaking Order/Non Speaking Order Note : The District Legal Services Authority is directed to pay the scheduled fees to Mr.V.Perarasu, legal-aid counsel appointed by this Court, to assist this Court on behalf of the third respondent/victim. Issue Order Copy by 16.12.2024. ars Page No.8 of 9

SUNDER MOHAN, J. ars Copy to:

1.The Sessions Judge, Special Court for exclusive Trial of Cases under POCSO Act, Vellore.

¶2The Deputy Superintendent of Police, Thirupathur Town Police Station, Thirupathur.

¶3The Inspector of Police, Thirupathur Town Police Station, Thirupathur.

4.The Superintendent, Central Prison, Vellore.

5.The Public Prosecutor, High Court, Madras.

13.12.2024 Page No.9 of 9

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.12.2024 CORAM THE HONOURABLE MR.JUSTICE SUNDER MOHAN Prabakaran ... Appellant/sole Accused Vs. 1.State Represented by; The Deputy Superintendent of Police, Thirupathur Town Police Station, Thirupathur. 2. The Inspector of Police, Thirupathur Town Police Station, Thirupathur. 3.D.Subasri ... Respondents/Complainants PRAYER: Criminal Appeal filed under Section 14(a)(2) of the Scheduled Castes and Scheduled Tribes, 1989, to set aside the order passed by the learned Sessions Judge, Special Court for exclusive Trial of Cases under POCSO Act, Vellore, in Crl.M.P.No.1418 of 2024 in Spl.S.C.No.110 of 2023 dated 08.10.2024 and enlarge the appellant on bail. For Appellant : Ms.E.Thiyaga For R1 & R2 : Dr.C.E.Pratap Government Advocate (Crl. Side) For R3 : Mr.V.Perarasu Page No.1 of 9 Legal Aid Counsel