IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4289 of 2006(A)
1. SUNILKUMAR, S/O. PRABHAKARAN,
... Petitioner
Vs
1. CIRCLE INSPECTOR OF POLICE,
... Respondent
For Petitioner :SRI.SASTHAMANGALAM S. AJITHKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice J.M.JAMES
Dated :19/10/2006
O R D E R
J.M.JAMES, J.
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B.A. 4289/2006
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DATED THIS THE 19TH DAY OF OCTOBER, 2006
O R D E R
The petitioner is facing the accusation for the
offence punishable under Section 376 IPC, as he had
committed rape on a minor girl, who is born to his wife of
her first husband. After the delivery, the child was
thrown to the adjacent tea estate. With the intervention
of the police, the child was rescued. The police registered
the case against the minor girl, who delivered the infant,
as well as her mother together with the petitioner, for
different offence. The petitioner had surrendered on
6.6.2006 in crime No.130/2006 of Vizhinjam police station.
He approached this Court for bail.
2. While the bail application was pending, without
disclosing the same, the petitioner filed another
application for statutory bail. The learned Magistrate,
unaware of the pendency of the bail application before this
Court, granted bail to him on 18.8.2006.
B.A.4289/2006
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3. A report was called from the learned
Magistrate. He informed that he was unaware of the
pendency of the matter. The matter show that a woman,
by name Parvathy Sarojam, was behind the filing of that
petition and the counsel of Neyyattinkara Magistrate
Court was also involved in it.
4. Finding the foul play in the entire matter, I
had directed the Registrar of Subordinate Judiciary to
enquire into the whole episode and file a report, as it was
stated before this Court, through the counter affidavit
filed by the petitioner, that the said Parvathy Sarojam
had collected huge amount of Rs.24,000/- from his
mother for getting bail. But she did not pay it to the
counsel except for a paltry sum. She claimed herself to
be the clerk of an advocate practicing before the
Magistrate Court. She also filed an affidavit before this
Court along with this application, stating that she is a
cousin of the petitioner. However, this was being denied
by the petitioner, when he appeared before me.
B.A.4289/2006
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5. On getting the entire facts, I had directed the
petitioner to be present before this Court. Accordingly,
he appeared before this Court on 12.9.2006, on which
date he filed a statement also. After considering the
materials, I had directed him to surrender before the
Judicial Magistrate of First Class-II, Neyyattinkara, on
19.9.2006 at 11.00 a.m. Accordingly he surrendered and
he remains in judicial custody.
6. When the application came up for
consideration, the learned counsel submitted that the
petitioner had completed 90 days in judicial custody,
namely from 6.6.2006 to 16.8.2006 and from 19.9.2006
till date.
7. After hearing both sides and considering the
materials that are placed before me, without affecting
the further proceedings that may be initiated against the
petitioner, the said Parvathy Sarojam, the counsel
concerned and anyone else in this case, I grant bail and
release the petitioner from jail, subject to the following
B.A.4289/2006
4
conditions:-
(a). The petitioner shall execute a bond
for Rs.25,000/-, with two solvent sureties,
each for the like sum, to the satisfaction
of the Judicial Magistrate of First Class-
II, Neyyattinkara.
(b). The petitioner shall report before
the Investigating Officer, once in a week
on every Wednesday, between 10.00 a.m
and 11.00 a.m., for a period of three
months, starting from 25.10.2006, and
thereafter, on the first working day of
every month, between the same timings,
till the completion of the trial and final
disposal of the case.
(c). The petitioner shall not cause any
threat to the victim, her mother or to
any witnesses using his influence and
control over them, while he is on bail.
(d). The petitioner shall not leave the
B.A.4289/2006
5
State of Kerala, till the disposal of the
cases as well as the proceedings
thereon, that may be initiated basing on
the enquiry report submitted by the
Registrar.
The application is allowed as above.
Put up the case file for further action.
J.M.JAMES
JUDGE
mrcs
B.A.4289/2006
6
B.A.4289/2006
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The application under Section 439 Cr.P.C., was pending
before this Court. The petitioner is the accused, who
committed rape on a sixteen year old girl, who is none
other than the daughter of his second wife. She became
pregnant and delivered a child. The child was
abandoned. Accordingly crime No.115/2006 of
Vizhinjam Police station, was registered for abandoning
the child, against the sixteen year old girl, who delivered
the child, as well as her mother, the wife of the petitioner
herein. The same is under investigation. Meanwhile, on
the statement of the victim, the sixteen year old girl,
crime No.130/2006 of Vizhinjam Police Station, was also
registered.
2. When the bail application came up before this
Court, I heard the learned counsel Mr. Sasthamangalam
S.Ajithkumar. Considering the seriousness of the matter,
B.A.4289/2006
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the bail was not instantly granted on 7.8.2006 and
posted to this date.
3. When the application came up today, the
learned counsel submitted that the petitioner had moved
the bail before the Magistrate Court and the learned
Magistrate had granted bail. Therefore, the counsel
seeks permission to withdraw the application. The
counsel also submits that as the brief has been entrusted
to another counsel of the Mofussil station, he no more
holds the brief of the petitioner.
4. The learned Public Prosecutor submitted that
the C.D file, in respect of crime No.130/2006 of
Vizhinjam Police Station, is in his possession from
26.7.2006 onwards. Thus it is clear that the learned
Magistrate had passed the order without the perusal of
the C.D file, and going through the facts in detail.
5. In the above facts situation, I direct the
learned Magistrate to send a detailed report together
with the copy of the order passed by him, granting bail to
B.A.4289/2006
9
the petitioner, Sunilkumar, in crime No.130/2006 of
Vizhinjam Police Station, within ten days from today.
Treat the matter as partly heard. Post on
28.8.2006.
J.M.JAMES
JUDGE
mrcs
B.A.4289/2006
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J.M.JAMES, J.
————–
B.A. 4289/2006
——————
DATED THIS THE 18TH DAY OF SEPTEMBER,2006
O R D E R
The petitioner preferred the application for
bail, under Section 439 Cr.P.C., as he was in judicial
custody from 6.6.2006, the date of his surrender, in
crime No.130/2006 of Vizhinjam police station. The
application was pending before this Court, for
consideration. However, without disclosing the same,
the petitioner moved an application before the Court
below, and obtained the bail. Hence, I called for a
B.A.4289/2006
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statement of the Magistrate. As per the report, the
Judicial Magistrate of First Class-II, Neyyattinkara,
stated that the pendency of the application before High
Court, was not brought to his notice and he granted bail,
as the petitioner was in judicial custody for over 60 days.
2. The facts of the case are that the petitioner
was living with a woman by name Mary. She was above
40 years, whereas the petitioner is below 30. Mary was
married earlier. She had a minor girl, below of age of
16 years, born to Mary, in her first marriage with
another man. The petitioner, while living with Mary,
impregnated the minor girl and the girl delivered a male
child in the S.A.T hospital, Thiruvananthapuram. The
petitioner took the girl to the house, where he was living
with Mary. Thereafter, the child was thrown in an
adjacent property. On the complaint of the local people,
the police took the child to the hospital. Thereafter, it
was traced that the child was born to the minor girl,
consequent on the rape, committed on her, by the
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petitioner. Therefore, crime No.130/2006 had been
registered against the petitioner for the offence
punishable under Section 376 IPC. Another crime
No.115/2006 was also registered against Mary as well as
her daughter. Both the cases are under investigation, by
the Investigating Officer. That was the reason why this
Court did not grant bail, even after 60 days, and posted
the matter, thereafter.
3. The turn of the events show that one Parvathy
Sarojam, aged 48 years, Geetha Bhavan, Oadamkuzhi,
Thirumala P.O., Thiruvananthapuram, who claims to be
the cousin of the petitioner, had filed an affidavit before
this Court for obtaining bail to the petitioner. It is
submitted by the petitioner before this Court that
Parvathy Sarojam is not related to him and she
approached his mother for arranging bail to the
petitioner. As per the statement dated 12.9.2006 filed by
him. On the orders of this Court, Parvathy Sarojam
collected Rs.24,000/-, claiming that she is the clerk of the
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Advocate at Neyyattinkara. Of Rs.24,000/-, Rs.1,000/-
was paid to the advocate S.Sunil Raj at Neyyattinkara
and Rs.2,000/- to advocate Sasthamangalam S.
Ajithkumar, who appeared before this Court, in
B.A.No.4289/2006.
4. One Jayakumar Abraham was the advocate
who was appearing before the Magistrate Court,
Neyyattinkara, and moved an application for bail before
that Court. However, from the order sheet refusing bail,
I find that name of the advocate shown is
Sasthamangalam S. Ajithkumar. No name of the
advocate is shown in the order, granting bail by the
learned Magistrate dated 16.8.2006.
5. However, the submissions made before this
Court show that Sasthamangalam S. Ajithkumar was
unaware of the filing of the application before the Court
below, while the bail application was pending before this
Court. Though in the statement dated 12.9.2006 the
petitioner states that he had not committed any fraud but
B.A.4289/2006
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the fact remains that there is a foul play in obtaining bail
without disclosing the pendency of the petition as well
as not granting of the bail after completion of 60 days, by
this Court, because of the peculiar facts of this case,
involving the petitioner. In the above facts situation, I
pass the following orders.
(a). The petitioner shall surrender before the
Judicial Magistrate of First Class-II, Neyyattinkara,
on 19.9.2006 at 11.00 a.m.
(b). The learned Magistrate shall remand him to
judicial custody until further orders.
(c). The Registrar of Subordinate Judiciary, shall
conduct a fact finding enquiry, as to who filed the
application before the Judicial Magistrate of First
Class-II, Neyyattinkara, in crime No.130/2006 of
Vizhinjam police station, praying for bail of the
petitioner, which led to the passing of the order
dated 16.8.2006, without disclosing the pendency
of B.A.No.4289/2006, before this Court.
B.A.4289/2006
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(d). The Registrar shall also collect all the
required informations from advocate Jayakumar
Abraham and S.Sunil Raj of Neyyattinkara, and
also from other advocates and persons from whom,
the true facts could be gathered for arriving at a
right conclusion on the matter. The involvement of
Parvathy Sarojam and the facts stated by her, in
the affidavit, dated 9.7.2006 as well as in the
statement filed by the petitioner on 12.9.2006,
shall also be taken into consideration, by the
Registrar.
6. The report shall be filed by the Registrar
within 15 days from the date of the receipt of the copy of
this order.
Post the application after 15 days.
J.M.JAMES
JUDGE
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