IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 8TH AUGUST 2011 / 17TH SRAVANA 1933 Bail Appl..No. 5786 of 2011 CRMP.2024/2011 of J.M.F.C. - I, PARAVUR CRIME NO.346 OF 2010 OF NORTH PARAVUR POLICE STATION, ERNAKULAM PETITIONER: ACCUSED NO.45 --------------------------------- SUNNY, S/O. JOSEPH, AGED 38, KACHAPPILLY HOUSE, THOTTAKATTUKARA, MATTOOR VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.ANIL K.MOHAMMED RESPONDENT: COMPLAINANT -------------------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08/08/2011, ALONG WITH B.A.NO.5947 OF 2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 5786, 5947, 5972, 5999 and 6028 OF 2011 ------------------------------------------------------ Dated this the 8th day of August, 2011 O R D E R These Bail Applications are filed under Section 439 of the Code of Criminal Procedure by accused Nos.45,103, 47, 114 and 104 in CBCID Crime No.111/CR/HHWII/EKM/11 (North Paravoor Police Station Crime No.346 of 2011). The offences alleged against the accused are under Sections 366-A, 354, 372, 373, 376 (2) (g), 506 (i), 342 and 202 read with Section 34 of the Indian Penal Code and Section 23 of the Juvenile Justice (Care and Protection of Children) Act. 2. The details regarding the name of the accused, his rank as an accused, date of his arrest and the Bail Application number are shown in the table below: Sl. No. Name of the accused Rank Date of arrest Bail Application 1 Sunny 45 30/6/2011 B.A. 5786 of 2011 2 Rajasekharan Nair @ Rajan 103 08/07/11 B.A. 5947 of 2011 3 R.Mohan Kumar 47 01/07/11 B.A. 5972 of 2011 4 Maideen 114 14/07/11 B.A. 5999 of 2011 BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 2 :: 5 Magudeswaran 104 08/07/2011 B.A. 6028 of 2011 3. The gist of the prosecution case is the following: The victim, a girl aged below 16 years, was taken to several places within the State and in the neighbouring States under force and threat and she was compelled to have sexual intercourse with several persons against her will and without her consent for the period from 3-5-2010. The First Information Statement was given by the victim on 7-3-2011. The father of the victim is a real estate broker and a person who supplies junior artists to film makers. On 3-5-2010, the victim was taken by her father to a hotel at Panampilly Nagar, Ernakulam, stating that they had to meet ‘film people’. After leaving the victim in the room in the hotel, father of the victim left the place. The victim was raped by the man who was in the room. Thereafter, on that date and on the following days, she was taken to several places in and around Ernakulam city, Mysore, Ooty, Thiruvananthapuram, Kannur, Chalakkudy, Athirappilly, Munnar, Bangalore, Thrissur, Mapranam, Coimbatore etc. On 1-1-2011, the father of the victim took her to Coimbatore and entrusted her to a man and woman. They took the victim to a house where she was locked. She was subjected to forceful sex by twelve persons who visited the BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 3 :: house. The victim escaped from that house and after reaching her native place, she disclosed the matters to her paternal uncle and other relatives. They advised the victim to inform the matter to the police. 4. The victim stated in the First Information Statement that her father used to entrust her with some brokers. The mother of the victim, initially opposed the misdeeds of her husband, but she was silenced by meting out cruelty to her by her husband. The father of the victim also threatened and terrorized the victim and her brother. On one occasion, the victim was taken by his father to Varapuzha bridge and he threatened that the victim would be thrown to the river. The father used to hang the brother of the victim upside down on the fan to pressurize the victim to go for sex work. The victim also stated in the First Information Statement that her father used to give her pills to prevent pregnancy. The victim had even to undergo treatment in two hospitals as a result of subjecting her to excessive sexual intercourse. The victim stated that her father used to receive money for presenting her to several persons. 5. Heard Sri.K.Abdul Jawad, Sri.M.T.Suresh Kumar, Sri.K.Sunil Kumar, Sri.Mansoor.B.H. and Anil K.Muhamed, learned counsel BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 4 :: appearing for the petitioners, and Sri.V.Tekchand and Sri.V.Manu, the learned Public Prosecutors. 6. The allegation against Accused No.45 Sunny (Petitioner in B.A. No. 5786 of 2011) is that he, along with Anoop (accused No.150), procured the victim girl with the help of Omana (Accused No.14). The girl was taken in a car to Vengoor, where Sunny owns a property. They subjected the girl to sexual abuse. They gave Rupees Five hundred as tip to the girl and Rupees Five thousand to Omana, the pimp. It is alleged that Sunny contacted one Lissy, who arranged a shed near Vengoor Dam, where the offence was committed. 7. Rajasekharan Nair @ Rajan (accused No.103) is aged 70 years. He was working in Navy. He purchased a property very near to the house of the victim. The property was purchased with the help of accused No.1, father of the victim. The family of the victim and accused No.103 became close to each other. The father of the victim requested for the help of accused No.103 to advise the victim girl against the excessive use of mobile phone by her. It is alleged that under the pretext of advising the victim, accused No.103 could manage to get a convenient place in the house of the victim. He made sexual advances BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 5 :: to the victim and eventually he had sexual intercourse with the girl on different occasions. The victim girl used to call accused No.103 “appooppan” (grandfather). 8. The allegation against accused No.47 R.Mohan Kumar is that he had sexual intercourse with the victim girl at Coimbatore. It is alleged that accused No.32 Shaji procured the girl and handed over to accused No.47. The victim was detained by accused No.32 Shaji and his wife Jessy (accused No.15). It is alleged that Shaji and Jessy are involved in a sex racket. They were involved in Kanjikode sex scandal in the year 2002. They shifted to Coimbatore and purchased a house, where the immoral activities are facilitated. It is alleged that accused No.47 R.Mohan Kumar, who conducts real estate business in Coimbatore, took the girl to a storied building where he conducts the real estate office. He had sexual intercourse with the girl in the bedroom in the upstair of that building. 9. Accused No.114 Maideen is a dealer in scrap. It is alleged that he has acquaintance with Omana (accused No.14). Omana and the father of the victim arranged the victim to Maideen who had sexual intercourse with the girl in his bedroom. It is alleged that Maideen paid BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 6 :: Rupees Five thousand to the father of the victim and Rupees Five hundred as tip to the girl. 10. Magudeswaran, accused No.104, had sexual relationship with the girl on two occasions, one in the house of Julie (accused No.105) and on another occasion in a lodge near Chottanikkara. Julie procured the girl for Magudeswaran, who is a professional money lender. 11. Sri.M.T.Suresh Kumar, the learned counsel appearing for accused No.47, submitted the following: Accused No.47 was falsely implicated in the case at the instance of accused No.32 Shaji, with whom Mohan Kumar is on inimical terms. Even going by the prosecution case, the victim accepted remuneration and that implies her consent. The allegation is that accused No.47 had sexual intercourse with the girl in February, 2011. By that time, she had attained sixteen years of age. Therefore, Section 376 of the Indian Penal Code is not attracted. The learned counsel also submitted that Section 373 of the Indian Penal Code is also not attracted, since, according to the counsel, the expression “illicit intercourse” in Explanation II to Section 373 should be read along with the expression “prostitution” occurring in Section 373. BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 7 :: The counsel submits that unless the girl is employed for prostitution, the procurer is not guilty under Section 373, even if he had sexual intercourse with the girl. 12. Advocate Sri.Abdul Jawad, learned counsel appearing for accused No.114, submitted that there is nothing to indicate that the accused knew or had reason to believe that the victim was below the age of sixteen years. There is no material to arrive at the conclusion that the accused had sexual intercourse with the girl knowing her to be under the age of sixteen years. The counsel submitted that accused No.114 suffered heart attack on three occasions. 13. Sri.Mansoor.B.H., the learned counsel appearing for accused No.103, submitted that there is no mention in the First Information Statement or in the statement of the victim under Section 164 of the Code of Criminal Procedure about the complicity of accused No.103. The said accused is a mahazar witness. The counsel submitted that accused No.1, the father of the victim, after his release on bail, demanded Rupees Two lakhs from the accused and he is implicated in the case only on the ground that he refused to accede to the illegal demand of accused No.1. BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 8 :: 14. The counsel appearing for the petitioners submitted that the remand reports produced in Court do not clearly state on what materials the petitioners are implicated and therefore, the petitioners are entitled to be released on bail. The counsel submitted that, at this stage, the accused can rely only on the remand reports and their fundamental freedom cannot be curtailed on scanty materials and insufficient data. 15. The contention that it must be shown that the accused was aware of the victim being under the age of sixteen years so as to constitute the offence under Section 376 of the Indian Penal Code, was rejected by this Court while dismissing some of the Bail Applications in the same Crime, wherein it was held thus: “The knowledge of the accused about the age of the victim is irrelevant. The question is whether the victim was under 16 years of age at the relevant time. Section 376 of the Indian Penal Code provides that a man is said to commit rape who has sexual intercourse with a woman, whether with or without her consent, when she is under sixteen years of age. A girl under 16 years of age cannot give a valid consent for sexual relationship. Even with such consent, the act would amount to rape under Section 376 of the Indian Penal Code. Even when the girl, who is really BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 9 :: under sixteen years of age, makes a false representation that she is above sixteen years, sexual intercourse with her by a man would amount to rape. “ 16. The contention raised by the counsel that the remand reports are lacking in material particulars is also without merit. I have gone through the remand reports. Necessary details are available in the remand reports. A remand report is for the purpose of enabling the Magistrate to satisfy himself of the necessity to remand the accused. A particular remand report has significance only for the period during which the accused is remanded, unless the same is relied on for the remand of the accused for subsequent period also. A remand report need not contain all the details which are available in the First Information Statement and the other materials collected during investigation. The remand report need only contain sufficient materials to arrive at the conclusion that detention of the accused is necessary or the continued detention of the accused is necessary. In other words, a remand report is not a substitute for the material papers to be supplied on appearance of the accused. An accused is not entitled to contend that he is entitled to be released on bail on the ground that all the materials collected during the investigation are not reproduced in the remand report. BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 10 :: 17. In Kamarudheen v. S.H.O., Muvattupuzha Police Station (I.L.R. 2010 (3) Kerala 870), the following contention was raised by the accused: “Except an allegation in the remand report dated 22.7.2010 that A-10 is involved in the criminal conspiracy, there is total lack of any material to support or substantiate the said allegation. On the contrary the said remand report refers to the confession by Yunus (A-4) regarding the criminal conspiracy hatched by the accused persons who do not include A-10. In the remand extension report dated 4.8.2010 also, there is no incriminating material relied on by the investigating officer so as to justify the continued detention of A-10. No weapon has been recovered from A- 10. When the remand report dated 22.7.2010 and remand extension report dated 4.8.2010 do not contain any incriminating material or circumstance against A-10, it is not open to the Public Prosecutor to elicit grounds or circumstances which are not referred to in the remand reports. A remand report is a vital document which should contain each and every ground on which a person accused of an offence is sought to be remanded to custody. In Kamarudheen's case, the aforesaid contention was answered thus: “16. It is true that the remand report dated BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 11 :: 22.7.2010 and the remand extension report dated 4.8.2010 pertaining to A-10 do not make mention of all the incriminating circumstances now relied on against him. The Cr.P.C. does not even use the expression “remand” during the crime stage (investigation stage) of a case. Section 167 Cr.P.C. only uses the expression “detention” at that stage. It is only at the post-cognizance stage that the Cr.P.C. uses the expression ”remand” (vide Section 309(2) Cr.P.C.). However, by way of long usage or practice, the process of the Magistrate authorizing the detention of an accused person during the stage of investigation also is understood as “remand”. 17. There is no provision in the Cr.P.C. requiring the Police Officer to submit a “remand report”. But under Section 167 Cr.P.C. it is imperative that the Police Officer should send along with the accused a copy of the entries in the Police diary which he is bound to maintain under section 172 Cr.P.C. Usually copies of the entries in the Police diary are not separately sent to the Magistrate. A gist of the above entries in the Police diary alone is incorporated by the Police Officer in the remand report or in the remand extension report. The purpose of filing such reports and the purpose of incorporation of the diary entries in such reports is to enable the Magistrate to decide whether he should authorize the detention or further detention of the accused to Police or judicial custody, as the case may be, or to release the accused. Bearing in BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 12 :: mind the purpose and significance of the remand report and the Constitutional rights of the arrestee, the accused has a right to get a certified copy of such remand report.” 18. In Fr.Jose Poothrikkayil and others v. Union of India and another (2008 (4) KHC 902), referring to Section 167(1) of the Code of Criminal Procedure, it was held thus: “24. The obligation under S.167(1) CrPC to furnish copies of entries is certainly, according to me, not to give the accused an opportunity to modulate and formulate his defence. The purpose is very clear and certain. A person is to be deprived of his liberty only in accordance with the procedure established by law as per Art.21. Even before he is found guilty, notwithstanding the presumption of innocence, the Court is given the power to deprive a person of his liberty. Strong reasons must be shown. Such powers cannot be resorted to as a matter of course. It is incumbent on the Investigating Officer to satisfy himself first as stated in Jyothish (supra) that an arrest has to be made. It is incumbent on him to satisfy the judicial authority - the judicial Magistrate- that he has valid and just reason for arresting a person and depriving him of his personal liberty. He has the duty to apprise the Court of the circumstances which must prompt the Court to resort to the unpleasant assignment of denying a person liberty even when the allegation against him is not proved to the BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 13 :: hilt. I reckon that the clear and unambiguous mandate of S.167(1) CrPC is that a person shall not deprived of his personal liberty unless there be satisfactory reasons. A compromise between the high ideals of personal liberty and the compelling needs of a proper investigation to collect materials in the interests of the State and the polity at large is reflected in S.167(1) CrPC. Therefore, according to me, it is idle to contend that the accused have been deprived of an opportunity to modulate their defence. 25. I must also note that every error committed by an Investigating Officer or Magistrate cannot persuade this Court to invalidate the action taken. Rule of law is not a mere fetish. Rule of law must cater to justice in the ultimate sense. It would be puerile and myopic for a Court merely on seeing some inadequacy on the part of the Investigating Officer or the Magistrate under S.167(1) CrPC to invalidate the entire proceedings and action taken. The duty is on every functionary under the Constitution to translate into reality the preambular commitment to do justice. Justice is the primary concern. S.167(1) deals with procedural law. All rules of procedure are nothing but handmaids of justice. Where the provisions of the Statute and Rules are violated the Court has to see whether notwithstanding the violation, such infraction affects the root of the matter and is sufficient to invalidate the action taken. BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 14 :: 26. I am of the opinion that the decision of the Karnataka High Court in Sudha Shivarame Gowda v. State of Karnataka, 1992 STPL (LE-Crime) 9651 KAR is perhaps the most apposite one on this aspect and rhymes with my thoughts on the subject. I am in complete agreement that the requirement of forwarding the entries in the case diary cannot be reckoned as a rule of the thumb as to invalidate the action as soon as that requirement is not satisfied. Such a view would lead to the bizarre conclusion that the Investigating Officer willing to oblige the accused (or an innocuous omission on the part of the Magistrate to give reasons under S.167(3) would deliver to the accused an undeserved advantage. That cannot be the law at all.” 19. A Division Bench in IN RE RAMAN VELU (1972 KLT 922) held thus: “Where, under S.167 or S.344 of the Code, the Magistrate passes an order of remand of the accused to custody, he performs a judicial act. That being so, the report, if any, submitted by the police is to furnish necessary information, on the perusal and examination of which the Magistrate has to take a decision as to whether or not the accused is to be committed to custody, or continued to be kept in custody, as the case may be. The purpose of the “remand report” is a relevant consideration in construing whether it is a 'public document' or not. What BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 15 :: forms the basis of a judicial decision, or what is used to any extent in aid of a judicial decision, cannot but be a public document in our view. We are, therefore, of the opinion that the remand report submitted by the Police, whether in relation to the remand under S.167, of extension or remand under S.344 of the Code, is a public document within the meaning of S.74 of the Evidence Act. What is expected to be furnished to the court at the time of moving for the remand or for the extension of the remand, are the entries in the case diary which is a document forming acts or record of acts of the investigating officer.” 20. Now I shall deal with the question whether the contention that the “illicit intercourse” within the meaning of Section 373 of the Indian Penal Code should be for the purpose of “prostitution”, is sustainable. Section 373 of the Indian Penal Code reads as follows: “373. Buying minor for purposes of prostitution, etc.-- Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be employed or used for any purpose, shall be punished with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine. BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 16 :: Explanation I.-- Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution. Explanation II.-- “Illicit intercourse” has the same meaning as in section 372.” 21. In Section 373 of the Indian Penal Code, the expressions “prostitution” and “illicit intercourse” occur. Explanation II to Section 373 states that “illicit intercourse” has the same meaning as in Section 372. Explanation II to section 372 defines “illicit intercourse” thus: “Explanation II.-- For the purposes of this section “illicit intercourse” means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to a marriage, is recognised by the personal law or custom of the community to which they belong or, where they belong to different communities, of both such communities, as constituting between them a quasi marital relation.” BAIL APPL.NOS. 5786, 5947, 5972, 5999 and 6028 OF 2011 :: 17 :: 22. Going by Explanation II to Section 372 of the Indian Penal Code, sexual intercourse between persons not united by marriage or by any union or tie constituting a quasi marital relation would amount to illicit intercourse. That definition is incorporated into Section 373 of the Indian Penal Code by the specific mention to that effect in Explanation II therein. Section 373 of the Indian Penal Code applies where any person buys, hires or otherwise obtains possession of any person under the age of eighteen years. Such act should be with the intent that the person concerned (victim) shall at any age be employed or used for the purposes mentioned in the Section. The purposes mentioned in the Section are: (a) prostitution; (b) illicit intercourse; or (c) any unlawful and immoral purpose. To attract Section 373 IPC, it is not always necessary that such intent must be established. It is sufficient if the offender knows it to be likely that such person (victim) will at any age be employed or