IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 Bail Appl..No. 5055 of 2008() ----------------------------- CRIME NO.454/08 OF KADAVANTHRA POLICE STATION PETITIONER --------------------------- SANTOSH MADHAVAN @ AMRUTHA CHAITHANAYA 4B, FLAT ROYAL STADIUM, KADAVANTHRA, ERNAKULAM BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) SRI.PRADEESH CHACKO RESPONDENTS: ------------- 1. CIRCLE INSPECTOR CENTRAL POLICE STATION,ERNAKULAM 2. STATE OF KERALA REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION SRI.P.G.THAMPI BY PUBLIC PROSECUTOR C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.5055 of 2008 ----------------------------------------- Dated this the 18th August, 2008 O R D E R This is the second application for bail filed by petitioner. 2. The alleged offences are under Sections 342, 366A, 376 and 343 of Indian Penal Code. According to prosecution, the de facto complainant belongs to a financially poor family and she joined the hostel by name, “House of Kids” run by petitioner while she was studying in Xth standard and she pursued her studies under the care of petitioner in the hostel. The entire expenses were met by petitioner. 3. Later, on 15.1.2006, the de facto complainant was taken to the residential flat of the petitioner by the 2nd accused stating the petitioner had asked him to arrange tuition for her. The victim was only aged 15 years at that time. On reaching the flat, she was wrongfully confined in the bedroom and she was raped by the petitioner. She was raped on several other occasions also by the petitioner from the same flat. She was asked by petitioner not to disclose the same to anybody. She also felt that it would not be in the interest of her family to divulge the details to anybody, since the petitioner is highly influential and rich. BA.5055/08 2 4. In 2006, she had gone for a retreat in a Church and she disclosed the incident to the counsellor. He advised her that if she made any issue about the incident or lodged a complaint, it would only cause damage to herself. He consoled her stating that God would punish him appropriately. Later, it is only when news came in the media that she gained the courage to give the complaint. A complaint was lodged by her on 18.5.2008 and a crime was registered. 5. The petitioner was taken into custody on 13.5.2008 by the police, and he was remanded to judicial custody. Learned counsel for the petitioner submitted that the petitioner has undergone detention for a period of more than 90 days now and investigation is, admittedly, over and charge sheet is also filed. Therefore, petitioner's detention is not required for the purpose of investigation. It is also submitted that except the four rape cases registered against him, he is on bail in all other cases. 6. The petitioner undertakes that he will not influence any witness or victim; he is prepared to abide by any condition if he is released on bail; he is prepared to take a house near the police station and be on police surveillance, and if so ordered, he is even prepared to stay outside Kerala State, it is submitted. He is BA.5055/08 3 prepared even to remain in his house without any contact with the outside world, with his house. For that purpose, he is willing to discontinue use of telephone also. He will not tamper with evidence or intimidate or influence witnesses, as alleged by the prosecution, it is submitted. 7. This petition is opposed. Learned Director General of Prosecution submitted that petitioner is involved in three more rape cases and also various other type of crimes and he is highly influential. He was posing himself as a `God man' and under that pretext, he was exploiting financially poor girls, including minors sexually. If the petitioner is released on bail, it is likely that victims and witnesses will be influenced by the petitioner and hence he may not be released on bail till the trial is over. According to him, it is not advisable to release him on bail, even on conditions. 8. Heard both sides and perused the case diary. For taking a decision in this case, it is necessary to look into the facts, as revealed from the case diary. The case diary shows that the victim belongs to a financially poor family, and she was dependent on petitioner because of the poor financial state of her family. The case diary shows that the victim was aged only 15 years at the time of offence. She belongs to a financially poor family, and she joined BA.5055/08 4 as an inmate of an institution run by petitioner in the name, “House of Kids”, which accommodated financially poor children and helped them to continue studies. She was afforded all facilities, including food, clothes, books, boarding and educational expenses. 9. During the stay, petitioner could create a false impression in the mind of people who were associated with him, that petitioner had divine powers and he is engaged in highly charitable work. They, accordingly, treated him with utmost respect and he was referred to as “swamy” (meaning, sanyasi) and he soon took over the position of the guardian of the children who were boarded in the “House of Kids”. The parents and the children were brought under his beck and call. 10. So, whenever second accused approached them stating that “swamy” wanted to meet the children, they readily accompanied him to petitioner's residential flat. They seldom knew that the young girls were procured for venting the lust of the petitioner, who disguised himself to be a holy man. The petitioner thus, exploited the faith and confidence which the people reposed in him. At the petitioner's residence, the child was raped and she was told not to divulge the incident to any body immediately. The same episode was repeated five to six times. But later, she divulged it to a BA.5055/08 5 counsellor in a retreat centre who advised her not to make it an issue since it may harm the child herself. 11. The complaint was lodged much later, after about two years of the incident only because, she was afraid of the petitioner, as he is quite rich and influential. She did not dare to make any complaint against him. But, when she heard about petitioner's arrest, she gained courage to give the complaint. The fact that petitioner is influential cannot be disputed. It was disclosed at the time of arguments that other series of crimes were also registered against petitioner and those are under investigation also. 12. All these crimes were brought to light only after a complaint was filed by a non-resident Indian lady in 2003, alleging that she was cheated to the tune of Rs.40 lakhs by petitioner. Though attempts were made ever since 2003, for a span of long five years, he could not be arrested till May 2008. The petitioner was freely moving around in and outside this city of Kochi and he was also involved in real-estate business and his he was available at various places. Still, petitioner who was a 'wanted criminal' for whom intensive search was made by Interpol could not be arrested for five long years. Evidently, all these must have been possible only because of petitioner's strong influence. BA.5055/08 6 13. It is true that petitioner is in custody for the past more than 90 days. It is equally true that his further detention may not be required in this case for purpose of investigation, since it is already over. His liberty is certainly a matter of grave concern for this court because it can be denied only in accordance with law. But, the need to ensure a fair trial in a case is also an equal responsibility of the criminal justice system. In the light of the strong influence which he may be able to exert on the victims and the witnesses, it is doubtful whether it may be possible to have a fair trial if petitioner is released on bail. 14. To have a fair trial is an assurance which the criminal justice system gives not only to the accused, but to the victim also. A fair trial does not mean a trial which is fair to one side alone. It must take care of the interest of both sides, the victim as well as the accused. It has certainly, a promise to fulful to the victims who also look forward to delivery of justice, after a trial. If a powerful and influential person is set at large and the freedom given to him is likely to be a threat to a fair trial in any manner, I am view that the court can curtail such freedom till the trial is over, by refusing bail. 15. It is not some thing new or unknown to this system that witnesses change their version during trial and on many occasions, it BA.5055/08 7 is alleged that this happened because of the strong influence of the accused on the victims or the threat on them. We have before us the best example in Best Bakery case and the like. There are many others in the series. There were at least a few sex racket cases in this State itself where voice was raised by public that either the victim was influenced or threatened or done away with, directly or indirectly by the accused. 16. The allegation raised in such cases is that victim was forced to change version from time time and ultimately the accused escaped. But, the victim continues to suffer the shame or the scorn of the society and the scar remain permanent in her whole life. Even the credibility of the victim and the woman as a whole, eventually remains a big question mark before this system. 17. Being a victim of rape is not a happy event for any child or woman. Thereafter, to be under pressure of the rich and the influential is not a happier event. Once she gets into the trap of the accused after the trial, the ridicule which she is subjected to, is yet another painful reality. When a victim changes her stand from time to time, being a puppet in the hands of the influential, the court ultimately labels her as an incredible witness or a lier or as one who is not worthy of any credence. This certificate is issued to the victim BA.5055/08 8 by the court, which takes great effort in justice delivery, and in many cases a vulnerable minor child becomes a victim of not only rape, but to the subsequent the influence or threat at the hands of those have already harmed her. The court shall not be a convenient tool in the hands of such people. 18. For all these reasons, I find that it may not be proper to release petitioner on bail because it may end up in drastic results. It may give petitioner an opportunity to win over the victim or witnesses. The vulnerable position in which they are placed, the poor financial condition, gender or social set up etc. are likely to be exploited. It is the duty of the court to prevent such possible influence or threat on the victims or the witnesses who will be forced to change their version. In my view, it may not be an excess if the court refuses bail to the accused to prevent another injustice. If the accused has to remain in jail till trial is over, and thereby if the right of the victim can be protected, I am of view that it must be done in the larger public interest. 19. It is true that several conditions were suggested by learned counsel for petitioner which will take care of the apprehension of the victim. But, in my view, there is a vast difference when the accused is in jail/judicial custody and he is out of it. It has to be borne in mind BA.5055/08 9 that the victim did not dare to speak anything against petitioner until he was taken into custody. True, learned Director General of Prosecution conceded that the victim did not mention that there was any threat or influence from petitioner after the registration of the crime, at the time of subsequent questioning. But, it is not clear whether the victims was questioned by the investigating officer to ascertain whether there was any such threat or not. The absence of influence or threat is a negative fact which a person may not voluntarily disclose, unless he or she is specifically asked about it. 20. After considering various facts and circumstances, I find that release of petitioner on bail will not be conducive in the larger public interest and to ensure a fair trial. Hence, the prayer for bail is to be rejected and I do so. However, learned Magistrate concerned is directed to take all steps as expeditiously as possible to ensure the committal of the case. The Sessions Court shall also ensure speedy disposal of the case without any delay. Petition is dismissed. K.HEMA, JUDGE vgs.