IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 3404 of 2008()
1. M. SAINALABDEEN, AGED 55 YEARS,
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. CIRCLE INSPECTOR OF POLICE
3. SUDHEER, AGED 12 (MINOR),
For Petitioner :SRI.R.GOPAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :03/06/2008
O R D E R
K.HEMA, J.
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B.A.No.3404 of 2008
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Dated this the 3rd day of June, 2008
ORDER
This is a petition for anticipatory bail.
2. According to the prosecution, on 2.5.2008 at about 4
p.m. one “Salavudeen” committed unnatural offence against a
boy aged 12 years on a statement given by the boy on 9.5.2008.
An FIR is registered against the accused.
3. According to the learned counsel appearing for the
petitioner there is an attempt to falsely implicate the petitioner
in an offence of this nature and this is done with ulterior motive
by one Sulaiman with whom the petitioner is in enmical terms.
Petitioner, who is the President of INTUC union, and Sulaiman
are on logger heads. It is understood that Sulaiman caused a
paper report to come in the newspaper “flash” alleging that the
petitioner committed offence under Section 377 IPC. Thereafter,
he managed to see that the police goes to the house of the boy
and take a statement from him while inmates of the house were
absent. It is also understood that the boy was persuaded by
Sulaiman to give a statement to the police and also give
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signatures and thump impression when police goes to his house.
The police, therefore, went to the house and the thump
impression was taken from the boy and a false case was foisted
against the petitioner, it is strongly contended.
4. It is also submitted that the boy as well as the mother of
the boy have absolutely no complaint against the petitioner and
the boy’s mother filed an affidavit stating that the allegations are
absolutely false. The de facto complainant’s mother is made a
party to this petition, since the complainant is a minor aged 12
years. She is represented by a counsel also. It is made clear by
him that neither the boy nor the mother has any complaint
against the petitioner and that the petitioner is absolutely
innocent of the allegations made. He also stated that the minor
was persuaded by “Sulaiman” to admit whatever police asked
the boy and also sign the papers given by the police. Hence,
when the police came to the house when the mother was away,
the minor acted as stated by Sulaiman. It is also submitted that
on the very next day the mother gave a complaint against the
police narrating the background in which the F.I.Statement was
procured by the police. (the copy of the complaint is produced
by petitioner). She also apprehends that the future of the boy
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will be affected if the investigation continues and hence it is
requested to drop investigation.
5. It is also brought to my notice that this boy and the
mother regularly called to the police station and made to sit till
evening and it is causing great hardship to the lady and the
minor.
6. Learned public prosecutor submitted that the minor
gave the statement in the presence of his own mother. The
police has no interest in anyone nor any motive against anybody.
Steps are taken by the investigating officer to record the
statement of the minor under Section 164 Cr.P.C. It is also
submitted that the minor’s mother is now deviating from the
stand for reasons best are known to her. The police has
absolutely nothing against the petitioner.
7. The copy of the FIR and FI statement are produced
before this Court as Annexure-B. As pointed out by the learned
counsel for the petitioner, name of the accused is shown as
“Salavudeen” where as the name of the petitioner is
“Sainalabdeen”. Both are different. The minor knows the
correct name of the petitioner and hence it is unlikely that he
would mention a wrong name. If the boy has actually given a
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complaint, the name would have been correctly stated in the
First Information Statement. It is also relevant to note that on
the top of the F.I. Statement, place from where statement is
recorded is mentioned as “Aralummoodu Cheriyakkonam
Chanalkara Veedu”. This is the address of the minor who is de
facto complainant. It is not understood why the police had gone
to the minor’s house to record the first information statement.
8. The learned public prosecutor submitted that the police
knew from newspaper report that offence under Section 377
IPC is committed against the minor and hence, they proceeded
to record the statement from the house of the minor. It can also
be seen there is nothing in the FI statement or FIR to show that
the minor’s statement was recorded in the presence of his
mother. That apart, it is seen from the F.I. Statement that
“Sulaiman” is an eye witness to the occurrence. But, it is curious
to note that, as per the F.I.Statement, the entire details of an
oral sexual act has been described including ejaculation. It is
not understood why the witness allowed the boy to be sexually
assaulted and he did not interfere. The F.I. Statement is not
given on the same day or on the next day. The family members
of the minor is also not informed about the incident. Taking all
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the facts and circumstances into consideration, particularly the
circumstances under which police recorded the F.I. Statement, I
find that it is only proper, in the interest of justice, to grant
anticipatory bail to petitioner.
9. Before closing, I find it necessary to consider the
allegations made in respect of harassment of the victim and his
mother by detaining in the police station under the guise of
questioning. Proviso to Section 160(1) Cr.P.C. lays down that
no male person under the age of 15 years or a woman shall be
required to attend any place other than in which such male
person or woman resides for the purpose of gathering
information. Sub-section (2) of Section 160 makes it clear that
the person who is so questioned at his residence is not entitled
for payment of reasonable expenses by the police officer.
Hence, the following order is passed:
(1) The respondent is directed to release the petitioner in
the event of his arrest on his execution of a bond for Rs.25,000/-
with two solvent sureties each for like sum to the satisfaction of
the arresting officer.
(2) However, the Investigating officer shall be at liberty to
question the accused in connection with the alleged crime.
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(3) The respondent shall not direct the minor-de facto
complainant or his mother to attend the police station for the
purpose of questioning in connection with the crime and they
may be questioned only from the place where they reside.
The petition is allowed.
K.HEMA, JUDGE
csl/krs