IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 Bail Appl..No. 4923 of 2011 CRIME NO.346 OF 2010 OF NORTH PARAVUR POLICE STATION, ERNAKULAM CRIME NO.111 OF 2011 OF CBCID, HHW II, ERNAKULAM PETITIONER: ACCUSED NO.35: -------------------- MANAF, S/O.MUHAMMED, AGED 38 YEARS PULIKUDY HOUSE, VENGOLA PO, ARAKKAPADY VILLAGE ERNAKULAM DISTRICT. BY ADV. SRI.ANIL K.MUHAMMED RESPONDENT: COMPLAINANT: --------------- STATE REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/07/2011, ALONG WITH B.A.NO.5080 OF 2011 AND CONNECTED CASES, THE COURT ON 01/08/2011, PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 ------------------------------------------------------ Dated this the 1st 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.35, 29, 17, 43, 37, 38, 39 and 51 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, his date of 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 Manaf 35 12-5-2011 B.A. 4923 of 2011 2 Manoj Gopi 29 08/06/11 B.A. 5080 of 2011 3 Manikantan 17 13-6-2011 B.A. 5172 of 2011 4 Muhammad Salih 43 28-6-2011 B.A. 5360 of 2011 BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 2 :: 5 Unnikrishnan Noby 37 38 11-6-2011 11-6-2011 B.A. 5551 of 2011 6 Thomas Varghese 39 26-6-2011 B.A. 5710 of 2011 7 P.R. Manu 51 04/07/11 B.A. 5727 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 house. The victim escaped from that house and after reaching her native place, she disclosed the BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 3 :: 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, though initially opposed the misdeeds of her husband, 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 the learned counsel for the Petitioners and the learned Public Prosecutor. 6. The allegation against Accused No.35 Manaf (Petitioner in B.A. BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 4 :: No. 4923 of 2011) is that he, with the help of accused No.2 Biju, took the victim to several places and had sexual intercourse with her. Biju had contacts with the victim since two years. Biju was the Assistant film Director and also the production controller of the film “Pramani”. 7. Manoj Gopi, accused No.29 (Petitioner in B.A. No. 5080 of 2011) took the victim to Tatapuram Guest House and he had sexual contact with her. The first accused Sudheer (father of the victim), accused No.4 Jose and accused No.10 Bindu procured the victim for Manoj Gopi. 8. Accused No.17 Manikantan (Petitioner in B.A. No.5172 of 2011) is a P.W.D. contractor and a businessman. He was arrested at Chennai Air Port while trying to fly to Singapore. The allegation against Manikantan is that with the help of accused Nos.1 to 5, the victim was brought to his house at Parassala in April 2010 and he had sexual contact with her on 11 times during two nights and a day. 9. The allegation against Muhammad Salih (accused No.43 - Petitioner in B.A. No.5360 of 2011) is that he had sexual contact with the victim in the flat belonging to accused No.46 Jamaluddin. BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 5 :: 10. As regards Unnikrishnan (accused No.37) and Noby (accused No.38), it is alleged that the victim was taken to the resort at Varkala belonging to Noby on three occasions and they had sexual intercourse with the victim girl. 11. Thomas Varghese (accused No.39 - Petitioner in B.A. No.5710 of 2011) is a political leader. The allegation is that he procured the girl with the help of Zeenath (accused No.36) and took the girl to a lodge at Thambanoor, Thiruvananthapuram. Alongwith Thomas Varghese, Eldho and Swaraj were also there. All of them had sexual intercourse with the victim girl. 12. The allegation against P.R.Manu (accused No.51 - Petitioner in B.A. No.5727 of 2011) is that he procured the victim girl with the help of accused No.32 and the girl was wrongfully confined in a house at Chandranagar, Palakkad for the purpose of sexual intercourse. 13. Sri. B.Raman Pialli, the learned counsel appearing for accused No.17 Manikantan, submitted that the accused has no house at Parassala. The case against him was foisted at the instance of Sri.Tomin Thachankary, a senior police officer with whom Manikantan had a property deal. It is BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 6 :: submitted that O.S. No.45 of 2011 was filed by APG Developers Private Limited against Manikantan before the Munsiff’s Court, Kuzhithurai. The counsel submitted that Tomin Thachankary has business interest in that Company. Sri.Raman Pillai submitted that there is no mention of the Parassala incident in the First Information statement. It is alleged that the victim was studying for plus one at the relevant time. If so, she must be aged above 16 years at that time. The name of Manikantan is introduced in the story put forward by the victim only a later point of time. Sri.Raman Pillai submitted that Manikantan had taken crores of rupees as loan for his business. He has employed more than 200 employees. His business has come to a stand still due to his detention. It is submitted that the victim could not identify Manikantan on two earlier occasions and he was identified by the victim on the third occasion in the test identification parade. It is submitted that even going by the prosecution case, it could at best be said that Manikantan is an ‘innocent customer’. It is submitted that the Passport of accused No.17 was seized by the investigating officer and it cannot be said that the accused would flee from justice. 14. Sri.Vijayabhanu, learned Senior Advocate appearing for Unnikrishnan, Noby, P.R.Manu and Manoj Gopi submitted that even if all the allegations made by the prosecution are accepted, it could only be concluded BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 7 :: that the aforesaid accused were ‘one time customers’. They never committed rape. No force was used against the victim. The allegations would show that the girl willingly co-operated and took money for the sex work. Sri.Vijayabhanu submitted that the whole case is flared up by the media. It is submitted that accused No.33 (Vijayan) who is also a ‘one time customer’ was granted bail. The senior counsel also submitted that in the statement given by the victim under Section 164 Cr.P.C., the names of the aforesaid accused were not mentioned. Accused No.37 Unnikrishnan and accused No.38 Noby were implicated in the case at the instance of accused No.7 Vijayan with whom they had money transaction. Accused No.7 is involved in TV serial production. The senior counsel also submitted that accused No.29 Manoj Gopi is suffering from liver cirrhosis as a result of jaundice. 15. Sri.Sanjay, the learned counsel appearing for accused No.43 Muhammad Salih submitted that the victim stated in the second statement given to the Crime Branch that Muhammad Salih only touched the victim and caressed her when the girl was brought to the flat in the possession of accused No.46. The only allegation is that Muhammad Salih had oral sex with the woman who brought the victim to the flat of accused No.46, which is not an offence. Only in the first statement given by the victim, there is mention about the sexual intercourse by accused No.43. The counsel BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 8 :: submitted that the first statement is a vague and general statement whereas the second statement is a clear and specific one. The counsel submitted that at best it could be said that an offence under Section 354 I.P.C. is prima facie made out against accused No.43, which is a bailable offence. 16. Sri.T.A.Unnikrishnan, learned counsel for accused No.39 Thomas Varghese, submitted in addition that going by the remand reports, detention of the accused was for the purpose of police custody and also on the ground that the other accused were not arrested. Since the other accused were arrested, there is no reason for the continued detention of accused No.39. The counsel also submitted that accused No.39 is a victim of groupism in Communist Party of India (Marxist). The counsel also submitted accused No.1 was released on bail. 17. Sri.Anil K. Muhammad, learned counsel appearing for accused No.35 Manaf supported the contention raised by the other counsel and added that accused No.35 is in custody since 12-5-2011 and there is no reason why he should be detained further. 18. Sri.Babu S. Nair, learned counsel who supplemented the arguments of Sri.Vijayabhanu, submitted that going by the date of birth of the BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 9 :: victim shown in the birth certificate as 23-8-1994, she attained 16 years as on 23-8-2010. If so, many of the accused persons cannot be said to have committed the offence alleged against them. 19. In answer to the contentions put forward by the learned counsel appearing for the accused, Sri.V. Manu, the learned Public Prosecutor, on a mastery of facts, submitted the following: The investigation in the case as revealed from the case diary would disclose the involvement of all the petitioners. It is submitted that accused No.37 is not a one time customer as contended. The allegation is that he had forceful sexual intercourse with the girl on three occasions. Complicity of accused No.39 Thomas Varghese is clear from the statements of Khadeeja, Swaraj and Eldho (accused Nos.8, 41 and 42). The statement of accused No.32 reveals the complicity of P.R.Manu, accused No.51. Complicity of Manoj Gopi is clear from the statements of accused Nos.4 and 10 and the Section 164 statement of the victim. Manaf, accused No.35 is referred to by the victim as “Karukaran” (person who owns car) and she identified Manaf and stated that he is the person who is referred to as “karukaran”. Accused No.17 (Manikantan) is a rich and influential person who has close links with political leaders. He is residing within the limits of Tamilnadu State. He tried to escape to Singapore and he was arrested from the Airport. Manikantan has high political BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 10 :: connections in Tamilnadu and Kerala. It is submitted that the victim girl identified him. The allegation against Manikantan is that he sexually abused the girl on eleven times during two or three days. As regards Muhammad Sali (accused No.43), the statement of the victim and the investigation reveal that he had sexually abused the victim. Accused No.1 was released on default bail. The learned Public Prosecutor submitted that the investigating agency is taking steps to file split charges. All the petitioners are very rich and influential. If they are released on bail, they would try to influence and intimidate the witnesses and tamper with the evidence. They may also make themselves scarce. 20. The details disclosed in the statement given by the victim under Section 164 of the Code of Criminal Procedure and the specific submissions made by the learned Public Prosecutor with reference to the materials in the Case Diary are not being discussed in this order since it may cause prejudice to the accused. 21. The condition of health of the victim was very poor when she approached the police. She was accommodated at the Government Girls Home at Kakkanad. She was found anaemic. She was given medical attention. On the recommendation of the investigating agency, a medical BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 11 :: team was constituted for examining the victim. The victim is being given nutritious food and medicines. The victim was having diseases due to excessive sexual abuse. The condition of health of the victim has improved. A report was submitted to the Government requesting to implement the suggestions therein to ensure security and welfare of the victim girl. The learned Public Prosecutor submitted that the State is incurring expenditure due to the misdeeds of the accused. 22. The case is popularly known as North Paravoor sex scandal case. The victim girl was under 16 years of age at the relevant time. The allegation is that she was thrown to the sex market by her own father. More than hundred persons sexually abused the girl. The learned counsel for the petitioners contended that even if the allegations are taken as true, it can only be said that the petitioners are “innocent customers” or “one time customers”. How could a person who had sexual intercourse with a girl under the age of 16 years say that he is an “innocent customer”? 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 BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 12 :: 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 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. 23. What is the nature of the consent that a girl below 16 years can give? What protest she can be expected to make when she is subjected to sex forcibly or by allurement or under threat? After she is subjected to such sex by a few persons, there would naturally be no protest from her part. That cannot be termed as consent. It cannot also be said that victim enjoyed sex with more than 100 persons. No woman would like to lead an immoral life. Circumstances make her to resort to prostitution. A hapless girl, who not only did not get any support from her family but who was cruelly dealt with by her father, cannot be expected to hope for a better treatment from the part of the accused and it can only be said that she is a victim at the hands of greedy sexual athletes. 24. Instances of sexual abuse of young girls is increasing day by day in the State. It is reported that several young girls are missing. It is not known where they disappear. Even if such girls are traced out, the society BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 13 :: would not accept them and allow them to come back to normal life. They will still be prone to exploitation by the people around her. It would appear that sex with young girls has become a luxury for the rich. Hunt for virgins has gained momentum. Fear of AIDS may be one of the reasons for avoiding “experienced sex workers” and prompting the needy and greedy in their pursuit of hunting virgins. From the case diary, it is seen that the victim in the present case was introduced to the customers as “fresh hand” and upto Rupees One lakh was demanded by the pimps (who were also made accused in the case) for providing the girl to some of the “customers”. It is also seen that one of the accused paid only Rupees 40,000/- on finding that the girl was not a “fresh hand”. A perusal of the case diary would reveal the height of “sexual luxury” some people enjoyed. 25. The learned counsel who appeared for the accused stated that the media, visual as well as print, are celebrating the sex scandal and a media trial is going on. It is not necessary to consider the same while disposing of the Bail Applications. 26. It is not as if our laws are insufficient to deal with the accused in cases where young girls are sexually exploited. Still, why such instances are on the increase in the State? This is a matter to be seriously considered by BAIL APPL.NOS.4923, 5080, 5172, 5360, 5551, 5710, 5727 OF 2011 :: 14 :: the society at large. Various factors are involved in such unfortunate incidents. A craze for getting roles in films, TV serials and other media programmes and to make fame and money exists among the young girls. It would appear that such craze is being exploited and the girls become prey to allurements. The thirst to gain fame and money lead the victims to a situation which they never desired and anticipated. 27. The petitioners are allegedly rich and influential people. If they are released on bail at this stage, it is most likely that they would terrorise, intimidate or influence the witnesses and tamper with the evidence. It is also likely that the petitioners would make themselves scarce and flee from justice. I am not inclined to grant bail to the petitioners at this stage. It is made clear that the observations made above should not be taken as findings at the trial of the case. For the aforesaid reasons, the Bail Applications are dismissed. (K.T.SANKARAN) Judge ahz/