Santosh Madhavan @ Amrutha … vs Circle Inspector Of Police on 13 August, 2008

Kerala High Court
Santosh Madhavan @ Amrutha … vs Circle Inspector Of Police on 13 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 5054 of 2008()


1. SANTOSH MADHAVAN @ AMRUTHA CHAITHANAYA
                      ...  Petitioner

                        Vs



1. CIRCLE INSPECTOR OF POLICE
                       ...       Respondent

2. STATE OF KERALA

                For Petitioner  :SRI.S.GOPAKUMARAN NAIR (SR.)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice K.HEMA

 Dated :13/08/2008

 O R D E R
                               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.

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