IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 9TH DECEMBER 2009 / 18TH AGRAHAYANA 1931 Bail Appl..No. 5288 of 2009 CRIME NO.1102 OF 2009 OF THRIPUNITHURA HILL PALACE POLICE STATION PETITIONERS: ACCUSED 1 & 2: -------------------- 1. SHAHAN SHA A, AGED 23, S/O. AKBAR SHA, KEECHERIYIL HOUSE, PETTA, PATHANAMTHITTA. 2. SIRAJUDEEN M, AGED 27, S/O. MEERA SAHIB, KOTHUVAL VEEDU, PETTA,PATHANAMTHITTA. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SMT.K.M.RAMYA RESPONDENT: COMPLAINANT & FORMAL PARTY: --------------- STATE OF KERALA, REP. BY ASSISTANT COMMISSIONER OF POLICE, CANTONMENT SUB DIVISION, THIRUVANANTHAPURAM CITY. DIRECTOR GENERAL OF PROSECUTION SRI.V.G.GOVINDAN NAIR PUBLIC PROSECUTOR SRI.C.K.SURESH PUBLIC PROSECUTOR SRI.M.S.BREEZ SRI.T.P.M IBRAHIM KHAN(ASST.SOLICITOR) SRI.MANJERI SUNDERRAJ SMT.K.K.PREETHA THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09/12/2009, ALONG WITH BA NO.5289 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS. 5288 & 5289 OF 2009 ------------------------------------------------------ Dated this the 9th day of December, 2009 O R D E R When these Bail Applications came up for hearing on 29th September 2009, the following order was passed: “These Bail Applications are filed by Shahan Sha and Sirajudeen, the accused persons in Crime Nos.1102 of 2009 of Tripunithura Hill Palace Police Station and Crime No.451 of 2009 of Peroorkada Police Station, for anticipatory bail under Section 438 of the Code of Criminal Procedure. The offences alleged against them are under Sections 120-B, 295-A and 377 read with Section 34 of the Indian Penal Code. 2. In this order, the names of the victim girls are not disclosed. No person, including the media, should disclose their names. For the sake of convenience, I would refer to the victim girls as the “Hindu girl” and the “Christian girl”. 3. It would appear that the Hindu girl fell in love with Shahan Sha, the first petitioner in these Bail Applications. Shahan Sha is a Muslim. The victim girls were studying for MBA Course. They are friends. Shahan Sha was their senior student in the college. At one point of time, he was expelled from the college. It would appear that the B.A. NOS.5288 AND 5289 OF 2009 :: 2 :: relationship between the Hindu girl and Shahan Sha started as a result of a telephone call. The intimacy developed. From the inception onwards, it is alleged that Shahan Sha spoke ill about Hindu religion and its tenets, beliefs and traditions. The Hindu girl was taken to Shahan Sha's house. She was taught the custom of the Muslim community, the mode of prayers and what should be done by a person in the normal life as a Muslim. Shahan Sha's mother was there in the house and she co-operated with Shahan Sha. Shahan Sha was constantly compelling the girl to convert to Islam. She was in utter confusion. It is alleged that Shahan Sha stated to the girl that unless she converted into Islam immediately, their relationship would come to an end. At last, she agreed. 4. In the meanwhile, Shahan Sha and the Hindu girl had contact with one Shaji, who was running a DTP Centre. Shahan Sha and the girl used to go there for taking copies of documents. It is alleged that Shaji used to speak ill about Hindu and Christian religions. The Hindu girl and the Christian girl used to go to the shop of Shaji. The girls were also told that their respective religion is not good and the only way to attain salvation is to embrace Islam. 5. Without the knowledge of the Christian girl, the Hindu girl was once taken to Ponnani by Shahan Sha. They stayed in a room. It would appear that Shahan Sha made some sexual advances towards her. However, it did not culminate in sexual intercourse. B.A. NOS.5288 AND 5289 OF 2009 :: 3 :: 6. The pressure mounted on the two girls to convert to Islam. They were directed to meet a person in a mosque. He also pressurized them to immediately convert to Islam. The girls were directed to come out of their house. Planning was made and the girls were instructed to comply with the directions given by Shahan Sha and his associates. 7. Accordingly, at about 3 AM on 18.7.2009, the Hindu girl was ready to come out of her residence. After some time, one Yasin gave her a missed call, which was the indication to come out of the house. She came out of the house with the help of Yasin. She was taken in a Scorpio car. Two ladies wearing Pardah were there in the car. After the Hindu girl entered into the car, she was compelled to wear Pardah. She obeyed. 8. While travelling in the car, the compact discs of Popular Front, an alleged extremist organisation, was being played. They proceeded to Ernakulam. 9. The Christian girl also came out of her residence in the early hours in a similar manner. The persons who took the Christian girl met the Hindu girl at Ernakulam. The Hindu girl was taken to a house at Ernakulam in a different car. In that car, one Ali and Nishad, stated to be the activists of Popular Front, were travelling. The Christian girl was also brought to that house. 10. The girls were directed to contact their parents over mobile phone from a place different from the place B.A. NOS.5288 AND 5289 OF 2009 :: 4 :: where they were taken, in order to avoid locating them by ascertaining the mobile tower station. Accordingly, from a different place, they contacted their parents and as directed, they stated to their parents that they were going to Ponnani to convert to Islam. The telephone call was snapped thereafter. The two girls stayed in the house at Ernakulam till the next day. On the next day, they were taken by one Khadeeja, who is stated to be the organiser of the Women Wing of Popular Front. One Nishad was also there with her. They took the girls in a Lancer car to Malappuram. They reached the residence of Haneefa Haji. After ten minutes, they were taken to another house at Kondotty. They were made to stay there for two weeks. Thereafter, they were taken to the house of Haneefa Haji, where they stayed for two weeks. The girls were visited by the members of Popular Front regularly. 11. There is no case that the Christian girl was in love with anybody. But when the girls were staying at the house of Haneefa Haji, several persons were brought to that house to see the Christian girl. Though a Dentist who came to see the Christian girl was willing to marry her, his parents were not willing. It is alleged that the proposal was to give in marriage the girls to somebody else. On 6.8.2009, Shahan Sha and one Shiraj met the Hindu girl and asked her whether she was willing to marry Shahan Sha. The girls came to know that the plan was to take them to Bangalore and to give them in marriage to somebody else. Two or three persons came there to see the Christian girl and to marry her. At last, Shahan Sha brought his friend B.A. NOS.5288 AND 5289 OF 2009 :: 5 :: Sirajudeen, (the second petitioner) a K.S.R.T.C. Bus conductor to the scene. 12. Meanwhile, a Habeas Corpus petition was filed by the parents of the missing girls. A direction was issued by a Division Bench of this Court to find the whereabouts of the missing girls. On 12.8.2009, the girls were taken by Shahan Sha and Shiraj to an Advocate's office at Calicut. Two “deeds of agreements to marry” were executed. The girls were made to sign the documents. One agreement was between Shahan Sha and the Hindu girl and the other was between Sirajudeen and the Christian girl. They were brought back to Haneefa Haji's house. During night, Shahan Sha stayed with the Hindu girl and Sirajudeen stayed with the Christian girl. On that night, the Christian girl was subjected to unnatural sex. It is alleged that an offence under Section 377 of the Indian Penal Code was committed. 13. Later, Shahan Sha and Sirajudeen appeared before the High Court along with the girls. The girls were not willing to go with their parents. The court persuaded them. At last, they agreed. It was with certain conditions that they were prepared to go with their parents. Those conditions were stipulated by Shahan Sha and Sirajudeen. After a few days, the girls appeared before Court and stated that they were not willing to go with Shahan Sha and Shirajudeen. The Division Bench permitted the girls to go with their parents. However, the articles belong to the girls were with Shahan Sha and Shirajudeen. It would appear that they “gracefully” agreed to return the articles to the girls. B.A. NOS.5288 AND 5289 OF 2009 :: 6 :: The Division Bench was also pleased to pass an order not to arrest Shahan Sha and Sirajudeen for a limited period. The Division Bench made an attempt to settle the matter between the parties. The parents of the girls stated that they were not willing for a settlement. Their view was that let the law take its own course. The Habeas Corpus petition is stated to be pending. 14. The case diary would further reveal that several compact discs were given by Shahan Sha to the girls. Most of them were obscene films. Several books were also given to them to persuade them to convert to Islam. 15. The girls stated to the police that Shahan Sha and Shaji specifically directed them not to disclose to the police that the activists belonging to Popular Front were assisting Shahan Sha and Sirajudeen for implementing the idea of converting the girls to Islam. The girls are of the view that in the whole episode, their religious faith was questioned and Shahan Sha, Shaji and Sirajudeen insulted the religious faith and tenets of the respective religion of the girls with deliberate and malicious intention of outraging their religious feelings. 16. I have perused the case diary file. There are indications that several similar instances took place in the State of Kerala. It is stated that there is a movement or project which is called “Romeo Jihad” or “Love Jihad” conceived by a section of the Muslims. The idea appears to be to convert girls belonging to other religions to Islam. It is B.A. NOS.5288 AND 5289 OF 2009 :: 7 :: stated that Muslim boys are directed to pretend love to girls of other religion and get them converted to Islam. Lot of money is available for executing the project. There are men whose help is available at any time. Organisations are also there to implement the project. 17. Before disposing of these Bail Applications, I am of the view that some additional information with regard to the number of similar cases which occurred during the last three years in the State of Kerala is required. The Director General of Police shall file a statement within a period of three weeks from today, touching upon the following aspects: (1) Whether there is a movement called “Romeo Jihad” or “Love Jihad” working in the State of Kerala? (2) If so, what are their plans and projects? (3) Which organisations are involved in such activities? (4) Where does the money come from for all these activities? (5) How many school and college students and youngsters were thus converted into Islam during the last three years? (6) Does the alleged project involve an all India basis and magnitude? (7) Has it got financial support from abroad? (8) Is there any connection between the “Love Jihad” movement and counterfeiting, smuggling, drug traficking and terrorist activities? 18. Every citizen of India is entitled to freedom of conscience and the right freely to profess, practice and propagate religion as enshrined in Article 25 of the Constitution of India. This right does not extend to the right to compel a person professing a religion to convert to B.A. NOS.5288 AND 5289 OF 2009 :: 8 :: another religion. Compulsion is alien to the right conferred under Article 25 of the Constitution of India. The freedom of one man should not entitle him to encroach upon the freedon of another. 19. In the facts and circumstances, I think the views of the Central Government are also material in deciding the questions involved in the case. Issue notice to the Assistant Solicitor General of India. Registry shall furnish a copy of the Bail Applications and a copy of this order to the Assistant Solicitor General of India. A copy of this order shall also be communicated by the Registry to the Secretary, Home Affairs, New Delhi. A statement shall be filed by the appropriate person on behalf of the Central Government pointing out their views in the matter of combating the activities of compulsive conversion of religion. The statement shall also indicate all the necessary information regarding “Romeo Jihad” or “Love Jihad”. The statement shall be filed within three weeks. 20. Learned counsel for the petitioners submitted that the Division Bench was pleased to issue an order not to arrest the petitioners till 30.9.2009, pending disposal of the Habeas Corpus Petition. The counsel submitted that there may be an interim direction not to arrest the petitioners. I am not inclined to pass any such order in the facts and circumstances of the case. 21. Learned counsel for the petitioners submitted that the Division Bench was convinced that no offence was B.A. NOS.5288 AND 5289 OF 2009 :: 9 :: committed by Shahan Sha and Shirajudeen and, therefore, there is no ground on which anticipatory bail should be refused to the petitioners. I am not inclined to accept the contention of the learned counsel for the petitioners. The question whether Shahan Sha and Shirajudeen were guilty of any offence was not in issue before the Division Bench. Therefore, there was no opportunity for the Division Bench to pronounce upon such matters. In fact, the Division Bench has not stated anything, in the various orders passed by them, on that aspect. 22. The counsel argued that the victim girls were present before the High Court on three occasions and the Honourable Judges of the Division Bench had occasion to interact with the girls. The counsel points out that the girls did not state to the Honourable Judges that they (the girls) were compelled to convert to Islam or that the offence alleged was committed by Shahan Sha and Sirajudeen. I do not think that this is a material fact while considering the application for anticipatory bail. The questions which came up for consideration before the Division Bench were entirely different. The orders passed by the Division Bench do not, in my view, affect the investigation of the case or the arrest of the petitioners. Post after two weeks.” 2. The Director General of Police, Kerala, filed a statement dated 18th October 2009, the relevant portion of which is extracted below: B.A. NOS.5288 AND 5289 OF 2009 :: 10 :: “2. It is submitted that on receipt of the order dated 29.10.2009, enquiries were made to ascertain whether any such compulsive religious conversion in the manner referred to in the order is taking place in the State of Kerala. The enquiries thus conducted have yielded the following information with regard to the questions raised by this Hon'ble Court in respect of compulsive conversion. Qn. (1) Whether there is a movement called “Romeo Jihad” or “Love Jihad” working in the State of Kerala ? Ans. No organization or movement called “Love Jihad” or “Romeo Jihad” is so far identified as working in Kerala. Qn. (2) If so, what are their plans and projects ? Ans. As stated above, there is no clear evidence regarding the operation of such an organization. Qn.(3) Which organizations are involved in such activities ? Ans. It is not established that any particular organization is actively engaged in such compulsive religious conversions. B.A. NOS.5288 AND 5289 OF 2009 :: 11 :: Qn.(4) Where does the money come from for all these activities? Ans. No reliable evidence is so far available in this regard. Qn.(5) How many School and College students and youngsters were thus converted into Islam during the last three years? Ans. Except for the two cases under consideration now, no specific complaints have been received regarding such compulsive love based conversions. In the two cases under consideration before the Hon'ble Court, Police have registered cases and are actively investigating the matter. Qn.(6) Does the alleged project involve an all India basis and magnitude? Ans. There is no clear evidence so far regarding this aspect. Qn.(7) Has it got financial support from abroad ? Ans. There is no reliable evidence so far regarding financial support from abroad. Qn.(8) Is there any connection between the 'Love Jihad' Movement and counterfeiting, smuggling, drug trafficking and terrorist activities ? Ans. There is no concrete information regarding this. B.A. NOS.5288 AND 5289 OF 2009 :: 12 :: 3. Further, it is humbly submitted that certain allegations have recently cropped up indicating that some organizations have devised plans for compulsive or deceitful religious conversions by winning over girls. The Police is seriously looking into these allegations and appropriate legal action would be initiated if the allegations are found to be true in any particular instance. No actionable information has been received by the Police so far to confirm the fact that any organization is indulging in such activities. 4. However, it is understood that a very large number of inter-religious marriages are taking place every year and that many conversions are taking place on that basis. The exact details or the exact numbers of such marriages are not readily available with any police agency. At the same time, there are reasons to suspect that there are concerted attempts to persuade girls to change their religion after they fall in love with Muslim boys. There is also unconfirmed source information received by the department that some groups are actively working among youngsters encouraging conversions by such techniques; that young men who are engaged in such pursuits are said to be receiving funds from abroad directly or indirectly for purchasing clothes and vehicles and for availing legal help etc.; that they have links with other places in India also. B.A. NOS.5288 AND 5289 OF 2009 :: 13 :: 5. In view of the existence of such complaints, allegations and source information, the Police are now actively trying to collect maximum information in this regard and to specifically identify actionable instances. The fact is that hardly anybody comes forward with any complaint to the Police in these matters. However, the Police will remain pro actively vigilant and take action in all instances where any reasonable suspicion exists that undesirable illegal liaisons are being attempted with any ulterior purpose of compulsive conversion. 6. It is humbly submitted that police would take stern lawful action against compulsive or deceitful religious conversions whenever and wherever such incidents are discovered. The intelligence agencies of the Kerala Police are also being tasked to monitor the activities of any organizations and groups alleged to be indulging in compulsive religious conversion.” 3. When the Bail Applications came up for hearing, it was noticed that some of the answers furnished in the Statement filed by the Director General of Police are vague and that many of the statements do not reconcile with each other. The Director General of Police was directed to produce in a sealed cover the reports which he received from the District Superintendents of Police and/or any other subordinate officers and all B.A. NOS.5288 AND 5289 OF 2009 :: 14 :: other materials on the basis of which the statement was prepared. It was also observed that the Director General of Police may also file an additional statement, if found necessary by him. 4. Accordingly, the Director General of Police filed another statement dated 9th November 2009. For the sake of completeness and convenience, the statement is extracted below: “It is submitted that this Hon'ble Court, by order dated 29.09.2009, had directed me to file a statement and to give answers to eight questions specified in the order. Accordingly, I had submitted a statement before this Hon'ble Court based on information available from subordinate units. After perusing my statement, this Hon'ble Court vide order dated 26.10.2009 directed me to produce the reports and materials based on which my statement was submitted and also to file an additional statement, if felt necessary. Accordingly, this statement is filed. 2. I submit that the separate answers to the eight specific questions raised by this Hon'ble Court were made on the basis of the contents of the reports received from various subordinate officers, through written reports and oral submissions from them. The confirmation of the oral submissions also were B.A. NOS.5288 AND 5289 OF 2009 :: 15 :: subsequently received in writing. Such information indicated that no concrete and sustainable evidence was available to establish that an organized movement called 'Love Jihad' was operating in the State of Kerala. There was no reliable evidence in such reports to indicate a specific positive or definitive answer to many of the questions posed by the Hon'ble Court. 3. I submit that, at the same time, as part of the above reports, I had received some information from some units based on source inputs, which suggested the clandestine designs of certain groups aimed at religious conversion through deceitful means, inter alia, under the guise of love. These inputs form part of reports marked No.16 to 18 in the sealed cover. The contents of these reports were relevant to the questions posed by this Hon'ble Court but were at variance with the contents of the other 15 reports. At the same time, the contents of these three reports also were not backed up with supportive evidence to come to a positive finding. Mention was made of these aspects also in the latter part of the statement dated 18.10.09 submitted before this Hon'ble Court to give a complete picture of the matter. The information contained in the three reports, though not substantiated, was relevant in the consideration of the questions put to me by this Hon'ble Court and hence I had submitted those aspects also. B.A. NOS.5288 AND 5289 OF 2009 :: 16 :: 4. It was specifically submitted in para 4 of my report dated 18.10.09 that this part was based on source information. Source reports are often based on hearsay. They are usually not supported by any direct evidence. Such reports often require to be clarified and substantiated by sustainable evidence. They also cannot be asserted as true unless there is supporting material. It may be noted that no cogent and coherent materials were available in the three reports mentioned above to make an unambiguous statement regarding the truth of the allegation of compulsive religious conversion. However, the contents of the said reports warranted further enquiries which I had caused to be made, as already submitted in para 05 of my report dated 18.10.2009. 5. It is further submitted that my separate answers to the specific questions are based on such set of facts which could be substantiated by reliable evidence. However, the substance of the source information based on which enquires were taking place were also brought to the notice of this Hon'ble Court. It is respectfully submitted that I could not come to a definite all-inclusive finding due to the divergence which existed in the contents of reports received from different subordinate units which formed the basis of my report to this Hon'ble Court. The reports so received are submitted herewith in a sealed cover, numbered as 1 to B.A. NOS.5288 AND 5289 OF 2009 :: 17 :: 18 as mentioned earlier, in obedience to the direction of this Hon'ble Court.” 5. I have examined the eighteen numbers of reports produced in the sealed cover.