IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(Crl.).No. 90 of 2007(S) -------------------------- PETITIONER(S): --------------------- P.ARAVINDAN,S/O.APPUKUTTY NAIR, PULIYATHAZHATH HOUSE,NELLIKODE AMSOM AND DESOM, KOZHIKODE. BY ADV. SRI.P.M.MOHAMED ALI SRI.AYPE JOSEPH RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,HOME DEPARTMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS,THIRUVANANTHAPURAM. 3. THE COMMISSIONER OF POLICE,CITY OF CALICUT,CALICUT. 4. THE SUB INSPECTOR OF POLICE,MEDICAL COLLEGE POLICE STATION,KOZHIKODE. ADDL.R5 & R6 IMPLEADED. 5. MR. JYOTHISH, S/O. BALAN, KADAKKILAKAM PARAMBA, PANICKER ROAD, KOZHIKODE. 6. SRI. BALAN, S/O. RAMAN, KADAKKILAKAM PARAMBA, PANICKER ROAD, KOZHIKODE. ADDL. R5 & R6 IMPLEADED AS PER ORDER DATED 28.9.2007 IN I.A. 9923/2007. BY GOVERNMENT PLEADER SRI. JAI GEORGE. SRI.P.S.SREEDHARAN PILLAI FOR R6 SMT.C.G.PREETHA FOR R6 SMT.P.RANI DIOTHIMA FOR R6 SRI.P.K.RAMKUMAR FOR R5 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(CRI). 90/2007. APPENDIX PETITIONER'S EXTS: EXT. P1 : TRUE CERTIFIED COPY OF THE FIRST INFORMATION REPRT FILED IN CRIME 53/07 FILED BY MEDICAL COLLEGE POLICE BEFORE THE JUDL. MAGISTRATE OF 1ST CLASS, KUNNAMANGALAM DATED 14.2.2007. EXT. P2 : TRUE COPY OF BIRTH CERTIFICATE OF VANDANA ISSUED FROM CORPORATION OF CALICUT DT. 21.6.1991. A.K. BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (Crl.) No. 90 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of March, 2009. JUDGMENT BASHEER, J, A helpless and hapless father of a minor girl is the petitioner in this writ petition filed way back in April, 2007 praying for issue of a writ of habeas corpus. He had come to this court with a grievance that his minor daughter Ms. Vandana, who had just completed 16 years (date of birth of Ms.Vandana is 19.2.1991) had been missing from his house from February 14, 2007. The specific case of the petitioner was that respondent No.5 had been hiding his daughter somewhere after abducting her from his custody. 2. Unfortunately for the petitioner there were two earlier episodes of abduction involving his daughter and respondent No.5. On January 3, 2006, when Ms. Vandana was hardly 15 years of age, respondent No.5 had abducted her. It appears that the matter was apparently hushed up and compromised by the parents. A little later on January 23, 2006 respondent No.5 had again abducted the minor girl and taken her to Wayanad. Subsequently during the pendency of the WP(Crl.). 90/2007. 2 investigation in the “man missing” crime, respondent No.5 had appeared before Nadakkavu Police along with the girl. In this connection, Crime No.31 of 2006 was registered against respondent No.5 for the offence punishable under Section 366A of the Indian Penal Code. The minor girl was allowed to go with her parents. 3. It appears that in this connection the police had registered yet another crime against respondent No.5 for the offence punishable under Section 448 IPC as Crime No.346 of 2006 on a complaint filed by the brother of the minor girl. In Crime Nos.31/2006 and 346/2006 final reports have been filed and the cases are stated to be pending trial before the jurisdictional Magistrate. 4. The third episode of abduction, which is the subject matter of this writ petition, took place on February 14, 2007. To make a long story short, Ms. Vandana, the detenu, was ultimately traced out from Bangalore after a hectic and marathon “search operation” by the police and produced before this court on February 21, 2009, more than an year after she was abducted. 5. In this context, we deem it proper to extract the following passages from various reports filed by the then Assistant Commissioner of WP(Crl.). 90/2007. 3 Police, North, Kozhikode City before this court from time to time. 6. In one of his earliest reports filed in May, 2007, the Assistant Commissioner had stated as follows: “On an information that the missing girl Vandana and Jyothish (respondent No.5) might have gone to Shimoga in Karnataka to avoid arrest, police team conducted enquiries in the limits of Dodderpet police station Shimoga, Town Police Station Chikmangalore, Darmalasthala Police Station, Kadry Police Station Mangalore, Belthangady Police Station, Belthangady PS.” 7. The officer had further stated thus: “It is the opinion of the feelers that the relatives are waiting for the girl to complete 18 years.” 8. In his report filed before this court in June, 2007, the officer had stated thus: “On the further investigation it is revealed that, Balan,, father of Jyothish had the information about both Vandana and Jyoithish, but he is trying to concealing them, then he was arrested n 14.6.2007 and produced before the Hon'ble JFCM Court, Kunnamangalam.” 9. Thereafter, the Officer had filed two or three more reports narrating the steps taken by him to trace out the detenu. WP(Crl.). 90/2007. 4 10. In his report dated February 21, 2008 the Officer had to say this: “On 2.2.2008 evening Hon'ble JFCM IV issued warrant (CMP 552/08) of search for Balan, S/o. Raman, Kadammalakam paramba, Vellayil, at Nadakkavu Police Station and the office of the Asst. Commissioner of Police, North, Kozhikode City where he was alleged detained. Advocate Abdul Azeez along with wife of Balan and his two brothers came to North sub division office and produced the warrant. Media persons with video cameras and some RSS/VHP activists were also along with the advocate. It was an unpleasant situation that a court officer is accompanied by , media and activists of a certain group. I suspect that this entire scene was drafted to thwart the investigation process threatening the team of vicious legal consequences. It is now clear that some RSS/VHP/Aryasamajam activists are rendering help to Jyothish and Balan to hide the minor girl and obstructing investigation. We were regularly contacting the leaders and elders of the area to help the Police to trace the minor girl which was mentioned in earlier statements of facts submitted. The advocate of the accused Mr.Sreedharan Pillai was also requested by me to help in the matter. But till today, they have not helped the investigation, instead they are trying to twist the investigation by hurling open threat to police. WP(Crl.). 90/2007. 5 As per the investigation conducted by the special team and information received so far, the pair is protected by RSS/VHP/Arayasamajam and is in their custody. The accused Jyothish is a rowdy of Vellayil police station. A history sheet is maintained there against him. There are several criminal cases registered against him. He was being used by RSS/VHP activists as a goonda. So they give all protection to him. They have a well knit set up difficult to pierce. When they deliberately protect the accused and the girl and laying impediments in the way of investigation through direct physical threat to malicious legal action, investigation is stone walled.” 11. It may be noticed that initially the detenu was allowed to go with the parents of respondent No.5 (Sri.Balan, respondent No.6 herein and his wife Mrs.Prasanna). But by order dated February 25, 2008 the detenu was ordered to be accommodated at Santhinikehan Hostel run by the Sadanam Trust at Ernakulam. Still later, by order dated April 2, 2008 the girl was accommodated at SV Homes in Kozhikode. The girl is even now staying in the said hostel. 12. When this petition came up for further consideration before us on February 24, 2009, we had directed the Assistant Commissioner of Police, North, Kozhikode to file a status report about the investigation of the WP(Crl.). 90/2007. 6 crime concerned. We had also directed that the girl be produced from the hostel before this court. 13. The Assistant Commissioner of Police had appeared before us and informed that final report in the case would be filed within one week. Since the petitioner, father of the detenu, was absent on that day, the girl was allowed to go back to the hostel. 14. On March 16, 2009 when the case was taken up for further consideration, we were informed that final report had already been filed. On perusing the report, we had observed that there was something amiss in the so called final report. We were informed that Sections 366A, 212 and 120B had been incorporated in the crime against respondent No.5, his father (respondent No.6) and seven others. Reportedly three of the accused including respondent No.5 and his father had been arrested and enlarged on bail and others were stated to be still at large. 15. Today, when the case is taken up yet again for further consideration, learned Government Pleader informs us that the investigating agency has no objection in incorporating Section 376 IPC, if this court so directs. In fact a report of the Assistant Commissioner of Police in this regard, is also made available for our perusal. We refrain from making any WP(Crl.). 90/2007. 7 comment on the stand taken by the investigating agency, to say the least. 16. We have taken the trouble to write this lengthy order narrating the sordid, unsavoury, and chequered history of this case only out of our anguish and anxiety about the manner in which the law enforcing agency has been put to ransom by some unscrupulous elements, who thought they were law unto themselves. They have frustrated the investigating machinery. They have even threatened the investigating officers and their family members. They have prevented the officers from going anywhere near their domain. They have shown the audacity to challenge the entire system. But still, here is an agency, which apparently has buckled under the pressures of these unholy elements. We stop here. 17. But, we make it clear that the faith of the common man in the system should never be allowed to be eroded. The law must take its own course and the guilty must be brought to book. If anybody thought that he could escape from the clutches of law, then he must be told that law will prevail. 18. The minor girl, who was abducted thrice when she was hardly 16 years of age is still at the mercy of her tormentors. Obviously the girl is now resigned to her fate. She had stated before us on the last WP(Crl.). 90/2007. 8 occasion that she cannot face her parents, relatives and neighbours. In these circumstances, we had sent her back to hostel. 19. Coming back to the so called final report in the case, we are now informed that the girl had reportedly told the investigating agency that she had had sexual intercourse with respondent No.5 only on July 30, 2008. The investigating agency now says that since the girl had crossed the crucial age of 16 years at the time when she had had sexual intercourse with respondent No.5, Section 376 will not be attracted. 20. It must be remembered that the girl was abducted for the third time on February 14, 2007. She was traced out and produced before the court only on February 21, 2008, more than an year after her abduction. Indisputably the minor girl was under the illegal detention of respondent No.5 for more than an year. But the investigating agency has now come up with the wonderful revelation that the minor girl had sexual intercourse with her abductor only on July 30, 2008, after she crossed the magical line of 16 years. Thus the investigating agency seems to think that the accused would be taken out of the dragnet of the Sixth description of Section 375 IPC. We say no more. WP(Crl.). 90/2007. 9 21. Having carefully and painfully considered the entire facts and circumstances of this case, we are satisfied that further investigation has to be ordered in this case through another agency, either CBCID or such other agency at the discretion of the Director General of Police. He shall issue appropriate orders in the matter within two weeks from the date of receipt of a copy of this judgment. It shall be ensured by the Director General that appropriate orders are issued to the agency concerned and a team of investigators is constituted to be headed by an officer not below the rank of a Dy.S.P.. Action taken report shall be filed by the Director General of Police before the Registry of this court within one month from the date of receipt of a copy of this judgment. 22. The head of the team of investigators shall file an action taken report before the Registry within one month from the date of assuming charge. The final report in the case shall be filed within an outer limit of three months form the date of assuming charge. 23. With the above observations and directions, the writ petition is disposed of. The girl shall be released from the hostel by the hostel authorities. Her opinion or desire will be elicited by the hostel authorities and she will be allowed to go either with her parents or with any WP(Crl.). 90/2007. 10 other person, whom she chooses. Registry shall communicate a copy of this judgment to the Director General of Police forthwith for necessary action and compliance. A.K. BASHEER, JUDGE P. BHAVADASAN, JUDGE sb.