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. 5054 of 2008() ----------------------------- CRIME NO.455/08 OF KADAVANTHRA POLICE STATION PETITIONER --------------------------- SANTOSH MADHAVAN @ AMRUTHA CHAITHANAYA 4B, FLAT ROAYAL STADIUM, KADAVANTHRA ,ERNAKULAM BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) RESPONDENTS: ------------- 1. CIRCLE INSPECTOR OF POLICE 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. 5054 of 2008 ----------------------------------------- Dated this the 18th August, 2008 O R D E R This is the second application for bail filed by petitioner. The petitioner was taken into custody on 13.5.2008 at 3 p.m. in connection with Crime no.897 of Central Police Station registered under Section 420 IPC on a complaint lodged by a non-resident Indian lady about five year back. Thereafter, a complaint was lodged by de facto complainant, aged 16 years, on 18.5.2008 against petitioner alleging, inter alia, that she belongs to a financially poor family and she was housed in a hostel run by the petitioner and the entire expenses were met by him to pursue her studies. Exploiting the poor financial condition, he promised to arrange a visa and job for her sister abroad and he also met her mother's treatment expenses. Both the girls were procured by petitioner's driver under some pretext or other. On one particular day, in 2006, the petitioner sexually tortured de facto complainant from his flat at the age of 14 years. Thereafter, the acts were repeated on several other occasions also, till April 2008. She did not divulge the details to anybody since petitioner was rich and BA.5054/08 2 influential. Later, when news flashed in media about petitioner's criminal activities, a complaint was lodged by de facto complainant on 18.5.2008, after arrest of the petitioner. A crime was registered under Section 336A, 376 and 34 of IPC. 2. 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. 3. 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 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, BA.5054/08 3 it is submitted. 4. 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. 5. 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 dary 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. Her mother's treatment expenses were met by petitioner and her sister (who is another victim at the hands of petitioner) was also ensured a job abroad. All arrangements were made by petitioner. During the acquaintance, 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 charitable work. They, BA.5054/08 4 accordingly, treated him with utmost respect and he was referred to as “swamy” (meaning, sanyasi) and he soon took over the position of her guardian. Her mother's confidence was also soon gained by petitioner. 6. So, whenever second accused approached stating that “swamy” wanted to meet her, she readily accompanied him to petitioner's residential flat. In the beginning, she did not know that she was 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 people reposed in him. At the petitioner's residence, she was raped and was threatened that he would expose her if she ever dared to divulge the incident to any body. The same episode was repeated subsequently also. 7. 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 influencial. 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. BA.5054/08 5 8. 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 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. 9. 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. BA.5054/08 6 10. 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 a fair trial and delivery of justice, thereafter. 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. 11. It is not some thing new or unknown to this system that witnesses change their version during trial and on many occasions, it 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. 12. The allegation raised in such cases is that victim was forced to change version from time time and ultimately the accused BA.5054/08 7 escaped. But, the victim continues to suffer the shame or the scorn of the society and the scar remains permanent in her whole life. Even the credibility of the victim and the woman as a whole, eventually remains as a big question mark before this system. 13. 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 also a happier event. Once she gets into the trap of the accused after the crime, 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 by the court, which takes great effort in justice delivery, in many cases who is hit is a vulnerable minor child also becomes a victim of not only rape, but to the subsequent influence or threat at the hands of whose who have already harmed her. The court shall not be a convenient tool in the hands of such people. 14. 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 the they are placed, the BA.5054/08 8 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. 15. 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. 16. 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 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 victim 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. BA.5054/08 9 17. 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 commit of the case. The Sessions Court shall also ensure speedy disposal of the case without any delay. Petition is dismissed. K.HEMA, JUDGE vgs.