The petitioners herein are accused Nos.3 and 4 in crime No.524/2014 of Thenhipalam Police Station, alleging commission of offences under Sections 363(a), 376 read with Section 34 of the IPC and Sections 5 and 6 of the Protection of Children From Sexual Offences Act. The gist of the allegations against the petitioners in the above said crime is that on 13.8.2014 the minor victim girl (now studying in 10th Std.) was taken in an autorickshaw offering sweets and she was taken to a lonely house and she was abused. It is further alleged that, about one year back, Sri.Mannan Velayudhan's son had also misbehaved to her and she had further complained that while she was studying 8th Std., ie. two years back, the petitioners herein had misbehaved towards her and accordingly, on 22.8.2014, a crime was registered in Thenhipalam Police Station on the basis of the written complaint given by the minor victim through the Child Welfare Committee, which led to registration of the instant Crime No. 524/2014 of Thenhipalam Police Station against five persons, including the petitioners herein (A3 & A4) alleging the said offences. Annexure-A is the copy of the FIR and Annexure-B is the copy of the complaint/statement given by the minor girl before the Child Welfare Committee. The 1st accused has been arrested and has been remanded to judicial custody. The petitioners, who are accused Nos.3 and 4, apprehend arrest and detention and hence they seek the relief of pre-arrest bail in this case. 2. Sri.P.P.Ramachandran, the learned counsel for the petitioners would submit that the complaint given by the minor victim girl is highly belated and at any rate, the offence punishable under Section 376 would not lie and even the factual allegations made in Annexures-A and B have not disclosed any factual details of the offences alleged against the petitioners under the Protection of Children From Sexual Offences Act, etc. The learned counsel for the petitioners would submit that custodial detention of the petitioners for interrogation is not necessary in the facts and circumstances of this case and that the petitioners undertake to fully co-operate to effectuate smooth and fair conduct of the investigation and that they will not influence or intimidate any of the witnesses and that they will not interfere in any manner with the investigation of the above said crime. It is urged by the learned counsel for the petitioners that the petitioners are living in the locality for the last so many years along with their family and that they had no criminal antecedents and that the arrest and detention of the petitioners would be as good as pre-judging them as guilty before the society before trial. Sri.P.P.Ramachandran, the learned counsel for the petitioners would submit that the petitioners are absolutely innocent of the allegations and that the investigation can be easily carried out without any custodial interrogation and that the petitioners will make themselves available and offer their full co- operation for such questioning by the Police, in the event of grant of prayer of pre-arrest bail.
3. The learned Public Prosecutor would submit that the offences alleged against the petitioners are very serious and that the child was well below the age of 16 as on the commission of the alleged incidents about two years back and that her statement given shows clearly that she was abused and that the mere fact that she has not given any graphic description of the details of the abuse undergone by her, cannot in any way aid the petitioners herein at this stage, especially for the consideration of the plea of pre-arrest bail. The learned Prosecutor would seriously urge that the custodial interrogation of the petitioners is highly necessary to unravel the truth of the matter and further that the 1st accused has already been arrested and that he is now remanded to judicial custody and further that the petitioners could not be arrested, as they were not traceable.
4. Having considered the submissions made by the learned counsel for the petitioners and the learned Public Prosecutor, this Court is of the considered opinion that the discretion to grant pre- arrest bail, in the facts and circumstances of the this case, need not be exercised. Our country is broadly following the adversarial system in criminal jurisprudence as adopted from the well established cannons in Anglo-Saxon common law jurisprudence and we are not adopting the inquisitorial mode followed in the European continent. Therefore, the role of unravelling the truth and nothing but the unvarnished truth is in the province of the investigating agency in our mode of criminal legal system. Therefore, it is the solemn duty of the investigator to arrive at the truth and nothing but the truth and more so, the unvarnished truth of the matter, so that there is a fair and smooth conduct of the investigation and that the investigator proceeds only after arriving at the truth. As to how the investigator is to function to arrive at the truth is also a matter within the sole province of the investigator, subject to the statutory provisions. This Court is of the considered opinion that the court shall not impede that discretion of the investigator while considering the plea of pre-arrest bail, in the facts and circumstances of this case. Therefore, this Court is to dissuade itself from considering any of the aspects of ferreting out the truth which have been very strongly and passionately urged by the learned counsel for the petitioners lest it may cause prejudice to either sides. This Court cannot presume that the investigator would act unfairly or arbitrarily or act against law. Therefore, the manner and method to be adopted in the conduct of the investigation to arrive at the truth of the matter rests best with the wisdom and discretion of the investigator, subject to the statutory codified laws. Therefore, under these circumstances, in the facts of this case, this Court is not inclined to exercise jurisdiction under Section 438 of the Cr.P.C. in the matter of grant of pre-arrest bail. Accordingly, this application stands dismissed. It is made clear that this Court has not expressed anything on the merits of the matter and the observations are made only to help the court adjudicate and judicially evaluate as to whether or not discretion should be exercised for pre-arrest bail. Sri.P.P.Ramachandran, the learned counsel for the petitioners would submit that the petitioners are ready to surrender before the investigating officer. This submission of the petitioners is recorded.
The prayer for pre-arrest bail stands thus rejected.
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sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge