DESMOND ANDRADE Vs. STATE

JUDGEMENT

(1.) HEARD Shri Menino Teles, learned Counsel appearing for the Applicant and Mrs. Pinto, learned Addl. Public Prosecutor appearing for the State - Respondents. The above application is filed by the Applicant for bail under Section CRMAB -139 -12 of the Cr. P. C., on the ground that he is of 22 years of age and that he is mentally retarded since from his childhood and his present IQ is 66 percent and he has been studying in a school known as St. Xavier's School, Centre for Handicapped Shanti Niketan at Old Goa, since the last four years. He has further stated that there are 240 students presently studying at the said Institution and that in view of the disability, he has a slow learning skill. It is further his case that the Director of the said Institution lodged a complaint with the Respondents, attached to the Old Goa Police Station on 18.12.2011 on the basis of the information of one of the Sisters by name Fatima Cardozo alleging that the Applicant took the victim, who was studying in the same Institute, to the toilet of the Institute and sexually abused her. It is further his contention that acting on the said complaint, the Respondent no. 1 registered an FIR being Crime no. 152/11 for offences punishable under Section of the Indian Penal Code and Section 8 of The Goa Children's Act. It is further his contention that immediately after the said complaint was lodged, the police arrested the Applicant on 19.12.2011 for the said accusations. It is further the contention of the Applicant that he is totally innocent and that he has been falsely implicated in the said crime. He has further stated that the Applicant as well as the victim are mentally retarded and the medical report discloses that the IQ of the Applicant is 66 percent and that of the Victim is 60 percent which is much less than 80 percent. The Applicant filed an application for bail before the learned Sessions Judge, which came to be rejected by Order dated 04.01.2012. Thereafter, the police have filed a chargesheet against the Applicant on 17.02.2012 and another bail application came to be filed before the Children's Court, which came to be dismissed by Order dated 19.03.2012. Thereafter, the CRMAB -139 -12 Applicant filed the above bail application.

(2.) THE Respondents have filed their reply disputing the contentions raised by the Applicant but, however, did not dispute the fact that the Applicant was mentally retarded. The main objection of the Respondents is that the Applicant may interfere with the prosecution witnesses and tamper with the evidence and that the Applicant may not be available at the time of the trial.

(3.) ON the other hand, Mrs. Pinto, learned Addl. Public Prosecutor appearing for the Respondents, has pointed out that the Applicant has been involved in a serious offence and, as such, the question of granting any bail to the Applicant would not arise. Learned Addl. Public Prosecutor further submitted that merely because the Victim has not disclosed any incriminating fact to implicate the Applicant in the act of sexual abuse, nevertheless, the Victim being of 16 years of age, cannot be accepted to state anything on that count to the concerned Police Officers. The learned Addl. Public Prosecutor further pointed out that in any event, there is other material on record which would conclusively establish that the Applicant is involved in the charges levelled against the Applicant. Learned Addl. Public Prosecutor further pointed out that in case the Applicant is released on bail, he would tamper with the evidence and further intermediate the witnesses of the prosecution and, as such, the question of granting any bail at this stage, would not arise.