IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 Bail Appl..No. 3404 of 2008() ----------------------------- (CRIME NO.228/08 OF NEYYATTINKARA POLICE STATION PETITIONER/ACCUSED: ------------------------------------ M. SAINALABDEEN, AGED 55 YEARS, NAJIMA MANZIL, ARRALUMMOODU, BALARAMAPURAM. BY ADV. SRI.R.GOPAN RESPONDENTS: COMPLAINANTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE NEYYATTINKARA POLICE STATION. 3. SUDHEER, AGED 12 (MINOR), REPRESENTED BY HIS MOTHER, NOORJAHAN, CHERIYAKONAM CHANNELKARA VEEDU,ATHIYANNOOR VILLAGE ARRALAMOODU P.O., NEYYATTINKARA. BY PUBLIC PROSECUTOR (SRI.M.S. BREEZ) SRI.SUMAN CHAKRAVARTHY FOR R3 THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------------------- B.A.No.3404 of 2008 ------------------------------------------- Dated this the 3rd day of June, 2008 ORDER This is a petition for anticipatory bail. 2. According to the prosecution, on 2.5.2008 at about 4 p.m. one “Salavudeen” committed unnatural offence against a boy aged 12 years on a statement given by the boy on 9.5.2008. An FIR is registered against the accused. 3. According to the learned counsel appearing for the petitioner there is an attempt to falsely implicate the petitioner in an offence of this nature and this is done with ulterior motive by one Sulaiman with whom the petitioner is in enmical terms. Petitioner, who is the President of INTUC union, and Sulaiman are on logger heads. It is understood that Sulaiman caused a paper report to come in the newspaper “flash” alleging that the petitioner committed offence under Section 377 IPC. Thereafter, he managed to see that the police goes to the house of the boy and take a statement from him while inmates of the house were absent. It is also understood that the boy was persuaded by Sulaiman to give a statement to the police and also give B.A.3404/08 2 signatures and thump impression when police goes to his house. The police, therefore, went to the house and the thump impression was taken from the boy and a false case was foisted against the petitioner, it is strongly contended. 4. It is also submitted that the boy as well as the mother of the boy have absolutely no complaint against the petitioner and the boy's mother filed an affidavit stating that the allegations are absolutely false. The de facto complainant's mother is made a party to this petition, since the complainant is a minor aged 12 years. She is represented by a counsel also. It is made clear by him that neither the boy nor the mother has any complaint against the petitioner and that the petitioner is absolutely innocent of the allegations made. He also stated that the minor was persuaded by “Sulaiman” to admit whatever police asked the boy and also sign the papers given by the police. Hence, when the police came to the house when the mother was away, the minor acted as stated by Sulaiman. It is also submitted that on the very next day the mother gave a complaint against the police narrating the background in which the F.I.Statement was procured by the police. (the copy of the complaint is produced by petitioner). She also apprehends that the future of the boy B.A.3404/08 3 will be affected if the investigation continues and hence it is requested to drop investigation. 5. It is also brought to my notice that this boy and the mother regularly called to the police station and made to sit till evening and it is causing great hardship to the lady and the minor. 6. Learned public prosecutor submitted that the minor gave the statement in the presence of his own mother. The police has no interest in anyone nor any motive against anybody. Steps are taken by the investigating officer to record the statement of the minor under Section 164 Cr.P.C. It is also submitted that the minor's mother is now deviating from the stand for reasons best are known to her. The police has absolutely nothing against the petitioner. 7. The copy of the FIR and FI statement are produced before this Court as Annexure-B. As pointed out by the learned counsel for the petitioner, name of the accused is shown as “Salavudeen” where as the name of the petitioner is “Sainalabdeen”. Both are different. The minor knows the correct name of the petitioner and hence it is unlikely that he would mention a wrong name. If the boy has actually given a B.A.3404/08 4 complaint, the name would have been correctly stated in the First Information Statement. It is also relevant to note that on the top of the F.I. Statement, place from where statement is recorded is mentioned as “Aralummoodu Cheriyakkonam Chanalkara Veedu”. This is the address of the minor who is de facto complainant. It is not understood why the police had gone to the minor's house to record the first information statement. 8. The learned public prosecutor submitted that the police knew from newspaper report that offence under Section 377 IPC is committed against the minor and hence, they proceeded to record the statement from the house of the minor. It can also be seen there is nothing in the FI statement or FIR to show that the minor's statement was recorded in the presence of his mother. That apart, it is seen from the F.I. Statement that “Sulaiman” is an eye witness to the occurrence. But, it is curious to note that, as per the F.I.Statement, the entire details of an oral sexual act has been described including ejaculation. It is not understood why the witness allowed the boy to be sexually assaulted and he did not interfere. The F.I. Statement is not given on the same day or on the next day. The family members of the minor is also not informed about the incident. Taking all B.A.3404/08 5 the facts and circumstances into consideration, particularly the circumstances under which police recorded the F.I. Statement, I find that it is only proper, in the interest of justice, to grant anticipatory bail to petitioner. 9. Before closing, I find it necessary to consider the allegations made in respect of harassment of the victim and his mother by detaining in the police station under the guise of questioning. Proviso to Section 160(1) Cr.P.C. lays down that no male person under the age of 15 years or a woman shall be required to attend any place other than in which such male person or woman resides for the purpose of gathering information. Sub-section (2) of Section 160 makes it clear that the person who is so questioned at his residence is not entitled for payment of reasonable expenses by the police officer. Hence, the following order is passed: (1) The respondent is directed to release the petitioner in the event of his arrest on his execution of a bond for Rs.25,000/- with two solvent sureties each for like sum to the satisfaction of the arresting officer. (2) However, the Investigating officer shall be at liberty to question the accused in connection with the alleged crime. B.A.3404/08 6 (3) The respondent shall not direct the minor-de facto complainant or his mother to attend the police station for the purpose of questioning in connection with the crime and they may be questioned only from the place where they reside. The petition is allowed. K.HEMA, JUDGE csl/krs