IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5055 of 2008()
1. SANTOSH MADHAVAN @ AMRUTHA CHAITHANAYA
... Petitioner
Vs
1. CIRCLE INSPECTOR
... Respondent
2. STATE OF KERALA
For Petitioner :SRI.S.GOPAKUMARAN NAIR (SR.)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :18/08/2008
O R D E R
K.HEMA, J.
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B.A.No.5055 of 2008
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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.
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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
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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
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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
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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.
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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
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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
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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
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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.