Bail Appl./8941/2019 of MOHANAN Vs STATE OF KERALA on 31 December 2019

ORDER

The petitioner is a 65 year old man alleged to have committed offencespunishable under Sections 376 AB, 376(2)(n) of the IPC and also under Section75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and underSection 4 read with Section 3(b) and Section 6 read with Section 5(1)(m)(n) ofthe POCSO Act.

2. The allegation in brief against the petitioner is that from 2017 to 2019on several occasions he had sexually abused his grandchild, who is aged 7 years.The alleged incident had occurred while she was studying in the UKG. Presentlyshe is studying in the 2[nd] standard. The petitioner would contend that theallegations are false and fabricated and under instigation of her mother. Themother of the child allegedly had a promiscuous life. She had married threemen, divorced all three of them. She had relationship with a man and thenaccused him of raping her. Complaint was filed two years after the allegedoccurrence. The petitioner as her father had little control over her. He had beenadmonishing her and her child was a mute witness to the wayward life of hermother. The steps taken by the petitioner to correct his only daughter lead tothis false accusations being made by her through her minor child. His daughterhad even attempted to commit suicide when she was admonished, as is evidentfrom Annexure F. The petitioner and his wife had even sought the custody of the minor child from their daughter with intention to save her as is evident formAnnexures D and E filed before the Vanitha Cell and also before the CircleInspector of Police, Ayyanthole West Police Station on 16.10.2019 and26.10.2019 respectively. In order to prevent that from happening, their daughterinstigated her minor child to file a false complaint accusing the petitioner ofabusing his grandchild. The FIR was registered on 27.11.2019.

3. The sequence of occurrences indicates that the possibility of the childbeing tutored cannot be ruled out completely. It is pointed out by the learnedPublic Prosecutor that the statement under Section 164 Cr.P.C. of the child alsohas not been recorded so far. In fact it ought to have been done immediately bythe Investigating Officer. The petitioner is a retired Government servant. Thefact that the petitioner and his wife had attempted to get custody of the child byitself indicates that there was some animosity between them and their daughter.The complaint which is lodged by the minor has been countersigned by themother. All these are indicative of the fact that she had an actual axe to grindagainst the petitioner. There is no possibility of the petitioner absconding. Inexceptional circumstances, even in cases registered under the POCSO Act can beconsidered for anticipatory bail. The fact remains that the minor is no longerliving with the accused and his wife.

4. Under the circumstances, the exceptional powers of granting pre-arrestbail has been favourably exercised in favour of the petitioner. In the event of the Bail Application No.8941 of 2019

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petitioner being arrested, he shall be released on bail on execution of a bond forRs.50,000/- with two solvent sureties to the satisfaction of the InvestigatingOfficer.

He shall not intimidate or influence witnesses. He shall not insist on thevictim to reside with him.

Sd/-

vpv

ASHOK MENON,

JUDGE

/TRUE COPY/P.A. TO JUDGE