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.
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B.A.No. 5054 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. 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
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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,
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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,
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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.
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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.
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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
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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
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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.
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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.
