IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 Bail Appl..No. 7320 of 2011() ----------------------------- CRIME NO.549/2011 OF VARAPUZHA POLICE STATION PETITIONER/ACCUSED NO.11 -------------------------- MANIKANTAN, S/O.KUNJU PILLAI,H.NO. V/32-B, M.J.BHAVAN,NEAR KUNNUMOOD CHECK POST, KUNNUMOOD P.O.,VILAVAMKODE TALUK, KANYAKUMARI DISTRICT. BY ADV. SRI.B.RAMAN PILLAI RESPONDENT: --------------- STATE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.C.K.SURESH STATE PROSECUTOR SRI.ASAF ALI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 05/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.7320 of 2011 ---------------------------------------------- Dated this the 05th day of September, 2011 ORDER This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.11 in Crime No.549 of 2011 of Varapuzha Police Station. 2. The offences alleged against the accused are under Sections 366-A, 376, 372, 373 and 354 of the Indian Penal Code. 3. The petitioner was undergoing detention in another case and his formal arrest was recorded in the present case on 20/08/2011. 4. The prosecution case is that a minor girl was sexually abused by several persons at several places in Kerala and in Bangalore. It is also alleged that big guns are involved in the sex racket. 5. The learned counsel appearing for the petitioner submitted that till 18/08/2011, the name of the petitioner was never implicated in the case. He submitted that his second application for bail in another case was filed before the High Bail Appln.No.7320/2011 : 2 : Court on 17/08/2011 as Bail Application No.6746 of 2011 and on the next day that is, on 18/08/2011, a report was filed before the court implicating the petitioner as accused in the present case. Annexure-A report does not contain any detail as to how and why he was made an accused or in what circumstances he was made an accused. It is submitted that on the basis of the report dated 18/08/2011, formal arrest of the petitioner was recorded on 20/08/2011 in the present case. 6. The learned State Prosecutor submitted that on 18/08/2011, the girl made a statement to the police in the presence of two members of the Child Welfare Committee constituted under the Juvenile Justice (Care and Protection of Children) Act in which the girl stated in clear terms about the complicity of the petitioner. On a query, it is submitted by the learned State Prosecutor that this statement was given after 5 P.M. on 18/08/2011. At this juncture, the learned Counsel for the petitioner pointed out that Annexure-A report was filed before the court on 18/08/2011 and it could never be assumed that such a report was filed after 5 P.M. The learned Counsel Bail Appln.No.7320/2011 : 3 : submitted that the story against the petitioner is highly concocted one. The State Prosecutor submitted that the victim had implicated the petitioner in an earlier statement as well. 7. The learned Counsel for the petitioner submitted that the petitioner had business dealings with a concern in which a police officer of I.P.S rank was interested and some civil litigations are going on in respect of the same. It is submitted that on account of the same, the police is out and out to see that the petitioner never comes out of the jail. 8. The petitioner also submitted the following details:- The case was originated on the basis of an information received by the Circle Inspector of Police, North Paravur Police Station that immoral activities were being carried on in a house. The Circle Inspector of Police rushed to the place and he found the girl in question, Binil Kumar and Jayarajan Nair in that house, who were engaged in sexual activities. The police registered the crime under Sections 3 and 4 of Immoral Traffic (Prevention) Act making the girl as accused No.1, Binil Kumar as accused No.2 and Jayarajan Nair Bail Appln.No.7320/2011 : 4 : as accused No.3. The accused persons were produced before court. It is stated that in a statement given by the girl, she stated that about five years back while she was a student, her mother Suchitra took her to Parassala and kept her in a guest house and she was presented to several persons. It was also stated that about three years back Suchitra sold the girl to Sobha John, who is accused No.1 in the present case. After the girl was purchased by Sobha John, she was taken to Bangalore, got admission to her in a college and she was forcibly involved in flesh trade. It is alleged that on 04/08/2011 Sobha John brought the girl from Bangalore to Varapuzha from where the police took the girl and two others into custody. 9. The learned Counsel for the petitioner also submitted that thereafter Sobha John, Suchitra, the brothel owner at Varappuzha, Jayarajan Nair, Binil Kumar, Anil and the girl were re-arrayed as accused Nos.1 to 7 and apart from offences under Sections 3 and 4 of the Immoral Traffic (Prevention) Act, Sections 366, 372, 373 and 34 of the Indian Penal Code were added. The bail applications filed by the Bail Appln.No.7320/2011 : 5 : accused were dismissed. The counsel submitted that on 09/08/2011, the police got the custody of the girl for four days and the girl gave a completely different story. She stated that while she was studying, she was taken to Parassala and one man sexually abused her. The girl stated that her father is dead. It is pointed out that the father of the girl is alive and he is accused No.9 in the case. It is submitted that on 13/08/2011, the name of the girl was deleted from the array of the accused. Sections 3 and 4 of the Immoral Traffic (Prevention) Act and 366 of the Indian Penal Code were deleted. Instead, Sections 366-A and 376 were added. The learned Counsel for the petitioner pointed out that the girl went on changing versions from time to time. She went on changing her name, her mother's name and her father's name in the different statements. Originally, she stated that her mother is Suchitra and later she changed her mother's name as Sundari. Later, she exonerated her mother and she alleged that her sister and brother in law compelled her for sexual activities and presented her to several persons. The learned Counsel for the petitioner submitted that the petitioner has Bail Appln.No.7320/2011 : 6 : been implicated in the case on no materials, and it was so done only on concocted materials and not on any legal or proper materials collected during investigation. It is submitted that the role of the I.P.S. Police Officer is so prominent that at the time when the petitioner was about to be released on bail in another case, he was implicated in the present case. 10. The learned Counsel for the petitioner also pointed out that Jayarajan was released on bail and Binil Kumar and accused No.3 (who is the brothel owner) were granted anticipatory bail. 11. For the purpose of the disposal of the bail application, it is not necessary to decide the complicated questions of the fact or disputed questions of fact. Any decision on disputed questions would cause prejudice either to the prosecution or to the defence. In the facts and circumstances of the case, I am of the view that the petitioner is entitled to get bail. 12. Taking into account the facts and circumstances of the case, the duration of the judicial custody undergone by the Bail Appln.No.7320/2011 : 7 : petitioner, the nature of the offences and the present stage of investigation, I am of the view that bail can be granted to the petitioner on stringent conditions. 13. The petitioner shall be released on bail on his executing bond for `50,000/-(Rupees Fifty thousand only) with two solvent sureties for the like amount to the satisfaction of the Judicial Magistrate of the First Class, North Paravur, subject to the following conditions: A) The petitioner shall surrender his Passport before the Court of the Judicial Magistrate of the First Class, North Paravur. If the passport was already surrendered or seized by the investigating officer, an affidavit sworn to by the petitioner to that effect shall be filed before the learned Magistrate. B) The petitioner shall not leave India without prior permission from the court concerned. C) The petitioner shall report before the investigating officer between 9 A.M. and 11 A.M. on all Thursdays, till the final report is filed or until further orders; Bail Appln.No.7320/2011 : 8 : D) The petitioner shall not directly or indirectly contact the victim or her father or mother in any manner whatsoever until the trial of the case is over. E) The petitioner shall appear before the investigating officer for interrogation as and when required; F) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence. G) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail. H) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed as above. K.T.SANKARAN, JUDGE skj