I must also note that every error committed by
an Investigating Officer or Magistrate cannot persuade this
Court to invalidate the action taken. Rule of law is not a
mere fetish. Rule of law must cater to justice in the
ultimate sense. It would be puerile and myopic for a Court
merely on seeing some inadequacy on the part of the
Investigating Officer or the Magistrate under S.167(1) CrPC
to invalidate the entire proceedings and action taken. The
duty is on every functionary under the Constitution to
translate into reality the preambular commitment to do
justice. Justice is the primary concern. S.167(1) deals with
procedural law. All rules of procedure are nothing but
handmaids of justice. Where the provisions of the Statute
and Rules are violated the Court has to see whether
notwithstanding the violation, such infraction affects the
root of the matter and is sufficient to invalidate the action
taken.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5786 of 2011()
SUNNY, S/O. JOSEPH,
... Petitioner
Vs
STATE, REPRESENTED BY THE
The Hon'ble MR. Justice K.T.SANKARAN
Dated :08/08/2011
These Bail Applications are filed under Section 439 of the Code
of Criminal Procedure by accused Nos.45,103, 47, 114 and 104 in
CBCID Crime No.111/CR/HHWII/EKM/11 (North Paravoor Police Station
Crime No.346 of 2011). The offences alleged against the accused are
under Sections 366-A, 354, 372, 373, 376 (2) (g), 506 (i), 342 and 202
read with Section 34 of the Indian Penal Code and Section 23 of the
Juvenile Justice (Care and Protection of Children) Act.
2. The details regarding the name of the accused, his rank as an
accused, date of his arrest and the Bail Application number are shown in
the table below:
Sl.
No. Name of the accused Rank Date of arrest Bail Application
1 Sunny 45 30/6/2011 B.A. 5786 of 2011
2 Rajasekharan Nair @ B.A. 5947 of 2011
Rajan 103 08/07/11
3 R.Mohan Kumar 47 01/07/11 B.A. 5972 of 2011
4 Maideen 114 14/07/11 B.A. 5999 of 2011
Magudeswaran 104 08/07/2011 B.A. 6028 of 2011
3. The gist of the prosecution case is the following: The victim, a
girl aged below 16 years, was taken to several places within the State
and in the neighbouring States under force and threat and she was
compelled to have sexual intercourse with several persons against her
will and without her consent for the period from 3-5-2010. The First
Information Statement was given by the victim on 7-3-2011. The father
of the victim is a real estate broker and a person who supplies junior
artists to film makers. On 3-5-2010, the victim was taken by her father
to a hotel at Panampilly Nagar, Ernakulam, stating that they had to meet
`film people'. After leaving the victim in the room in the hotel, father of
the victim left the place. The victim was raped by the man who was in
the room. Thereafter, on that date and on the following days, she was
taken to several places in and around Ernakulam city, Mysore, Ooty,
Thiruvananthapuram, Kannur, Chalakkudy, Athirappilly, Munnar,
Bangalore, Thrissur, Mapranam, Coimbatore etc. On 1-1-2011, the
father of the victim took her to Coimbatore and entrusted her to a man
and woman. They took the victim to a house where she was locked.
She was subjected to forceful sex by twelve persons who visited the
house. The victim escaped from that house and after reaching her
native place, she disclosed the matters to her paternal uncle and other
relatives. They advised the victim to inform the matter to the police.
4. The victim stated in the First Information Statement that her
father used to entrust her with some brokers. The mother of the victim,
initially opposed the misdeeds of her husband, but she was silenced by
meting out cruelty to her by her husband. The father of the victim also
threatened and terrorized the victim and her brother. On one occasion,
the victim was taken by his father to Varapuzha bridge and he
threatened that the victim would be thrown to the river. The father used
to hang the brother of the victim upside down on the fan to pressurize
the victim to go for sex work. The victim also stated in the First
Information Statement that her father used to give her pills to prevent
pregnancy. The victim had even to undergo treatment in two hospitals
as a result of subjecting her to excessive sexual intercourse. The victim
stated that her father used to receive money for presenting her to
several persons.
5. Heard Sri.K.Abdul Jawad, Sri.M.T.Suresh Kumar, Sri.K.Sunil
Kumar, Sri.Mansoor.B.H. and Anil K.Muhamed, learned counsel
appearing for the petitioners, and Sri.V.Tekchand and Sri.V.Manu, the
learned Public Prosecutors.
6. The allegation against Accused No.45 Sunny (Petitioner in
B.A. No. 5786 of 2011) is that he, along with Anoop (accused No.150),
procured the victim girl with the help of Omana (Accused No.14). The
girl was taken in a car to Vengoor, where Sunny owns a property. They
subjected the girl to sexual abuse. They gave Rupees Five hundred as
tip to the girl and Rupees Five thousand to Omana, the pimp. It is
alleged that Sunny contacted one Lissy, who arranged a shed near
Vengoor Dam, where the offence was committed.
7. Rajasekharan Nair @ Rajan (accused No.103) is aged 70
years. He was working in Navy. He purchased a property very near to
the house of the victim. The property was purchased with the help of
accused No.1, father of the victim. The family of the victim and accused
No.103 became close to each other. The father of the victim requested
for the help of accused No.103 to advise the victim girl against the
excessive use of mobile phone by her. It is alleged that under the
pretext of advising the victim, accused No.103 could manage to get a
convenient place in the house of the victim. He made sexual advances
to the victim and eventually he had sexual intercourse with the girl on
different occasions. The victim girl used to call accused No.103
"appooppan" (grandfather).
8. The allegation against accused No.47 R.Mohan Kumar is that
he had sexual intercourse with the victim girl at Coimbatore. It is alleged
that accused No.32 Shaji procured the girl and handed over to accused
No.47. The victim was detained by accused No.32 Shaji and his wife
Jessy (accused No.15). It is alleged that Shaji and Jessy are involved in
a sex racket. They were involved in Kanjikode sex scandal in the year
2002. They shifted to Coimbatore and purchased a house, where the
immoral activities are facilitated. It is alleged that accused No.47
R.Mohan Kumar, who conducts real estate business in Coimbatore, took
the girl to a storied building where he conducts the real estate office. He
had sexual intercourse with the girl in the bedroom in the upstair of that
building.
9. Accused No.114 Maideen is a dealer in scrap. It is alleged
that he has acquaintance with Omana (accused No.14). Omana and
the father of the victim arranged the victim to Maideen who had sexual
intercourse with the girl in his bedroom. It is alleged that Maideen paid
Rupees Five thousand to the father of the victim and Rupees Five
hundred as tip to the girl.
10. Magudeswaran, accused No.104, had sexual relationship
with the girl on two occasions, one in the house of Julie (accused
No.105) and on another occasion in a lodge near Chottanikkara. Julie
procured the girl for Magudeswaran, who is a professional money
lender.
11. Sri.M.T.Suresh Kumar, the learned counsel appearing for
accused No.47, submitted the following: Accused No.47 was falsely
implicated in the case at the instance of accused No.32 Shaji, with
whom Mohan Kumar is on inimical terms. Even going by the
prosecution case, the victim accepted remuneration and that implies her
consent. The allegation is that accused No.47 had sexual intercourse
with the girl in February, 2011. By that time, she had attained sixteen
years of age. Therefore, Section 376 of the Indian Penal Code is not
attracted. The learned counsel also submitted that Section 373 of the
Indian Penal Code is also not attracted, since, according to the counsel,
the expression "illicit intercourse" in Explanation II to Section 373 should
be read along with the expression "prostitution" occurring in Section 373.
The counsel submits that unless the girl is employed for prostitution, the
procurer is not guilty under Section 373, even if he had sexual
intercourse with the girl.
12. Advocate Sri.Abdul Jawad, learned counsel appearing for
accused No.114, submitted that there is nothing to indicate that the
accused knew or had reason to believe that the victim was below the
age of sixteen years. There is no material to arrive at the conclusion
that the accused had sexual intercourse with the girl knowing her to be
under the age of sixteen years. The counsel submitted that accused
No.114 suffered heart attack on three occasions.
13. Sri.Mansoor.B.H., the learned counsel appearing for accused
No.103, submitted that there is no mention in the First Information
Statement or in the statement of the victim under Section 164 of the
Code of Criminal Procedure about the complicity of accused No.103.
The said accused is a mahazar witness. The counsel submitted that
accused No.1, the father of the victim, after his release on bail,
demanded Rupees Two lakhs from the accused and he is implicated in
the case only on the ground that he refused to accede to the illegal
demand of accused No.1.
14. The counsel appearing for the petitioners submitted that the
remand reports produced in Court do not clearly state on what materials
the petitioners are implicated and therefore, the petitioners are entitled
to be released on bail. The counsel submitted that, at this stage, the
accused can rely only on the remand reports and their fundamental
freedom cannot be curtailed on scanty materials and insufficient data.
15. The contention that it must be shown that the accused was
aware of the victim being under the age of sixteen years so as to
constitute the offence under Section 376 of the Indian Penal Code, was
rejected by this Court while dismissing some of the Bail Applications in
the same Crime, wherein it was held thus:
"The knowledge of the accused about the age of the
victim is irrelevant. The question is whether the victim was
under 16 years of age at the relevant time. Section 376 of
the Indian Penal Code provides that a man is said to
commit rape who has sexual intercourse with a woman,
whether with or without her consent, when she is under
sixteen years of age. A girl under 16 years of age cannot
give a valid consent for sexual relationship. Even with such
consent, the act would amount to rape under Section 376
of the Indian Penal Code. Even when the girl, who is really
under sixteen years of age, makes a false representation
that she is above sixteen years, sexual intercourse with her
by a man would amount to rape. "
16. The contention raised by the counsel that the remand reports
are lacking in material particulars is also without merit. I have gone
through the remand reports. Necessary details are available in the
remand reports. A remand report is for the purpose of enabling the
Magistrate to satisfy himself of the necessity to remand the accused. A
particular remand report has significance only for the period during
which the accused is remanded, unless the same is relied on for the
remand of the accused for subsequent period also. A remand report
need not contain all the details which are available in the First
Information Statement and the other materials collected during
investigation. The remand report need only contain sufficient materials
to arrive at the conclusion that detention of the accused is necessary or
the continued detention of the accused is necessary. In other words, a
remand report is not a substitute for the material papers to be supplied
on appearance of the accused. An accused is not entitled to contend
that he is entitled to be released on bail on the ground that all the
materials collected during the investigation are not reproduced in the
remand report.
17. In Kamarudheen v. S.H.O., Muvattupuzha Police Station
(I.L.R. 2010 (3) Kerala 870), the following contention was raised by the
accused:
"Except an allegation in the remand report dated
22.7.2010 that A-10 is involved in the criminal conspiracy,
there is total lack of any material to support or substantiate
the said allegation. On the contrary the said remand report
refers to the confession by Yunus (A-4) regarding the
criminal conspiracy hatched by the accused persons who
do not include A-10. In the remand extension report dated
4.8.2010 also, there is no incriminating material relied on
by the investigating officer so as to justify the continued
detention of A-10. No weapon has been recovered from A-
10. When the remand report dated 22.7.2010 and remand
extension report dated 4.8.2010 do not contain any
incriminating material or circumstance against A-10, it is
not open to the Public Prosecutor to elicit grounds or
circumstances which are not referred to in the remand
reports. A remand report is a vital document which should
contain each and every ground on which a person accused
of an offence is sought to be remanded to custody.
In Kamarudheen's case, the aforesaid contention was answered thus:
"16. It is true that the remand report dated
22.7.2010 and the remand extension report dated 4.8.2010
pertaining to A-10 do not make mention of all the
incriminating circumstances now relied on against him.
The Cr.P.C. does not even use the expression "remand"
during the crime stage (investigation stage) of a case.
Section 167 Cr.P.C. only uses the expression "detention"
at that stage. It is only at the post-cognizance stage that
the Cr.P.C. uses the expression "remand" (vide Section
309(2) Cr.P.C.). However, by way of long usage or
practice, the process of the Magistrate authorizing the
detention of an accused person during the stage of
investigation also is understood as "remand".
17. There is no provision in the Cr.P.C. requiring the
Police Officer to submit a "remand report". But under
Section 167 Cr.P.C. it is imperative that the Police Officer
should send along with the accused a copy of the entries in
the Police diary which he is bound to maintain under
section 172 Cr.P.C. Usually copies of the entries in the
Police diary are not separately sent to the Magistrate. A
gist of the above entries in the Police diary alone is
incorporated by the Police Officer in the remand report or
in the remand extension report. The purpose of filing such
reports and the purpose of incorporation of the diary
entries in such reports is to enable the Magistrate to decide
whether he should authorize the detention or further
detention of the accused to Police or judicial custody, as
the case may be, or to release the accused. Bearing in
mind the purpose and significance of the remand report
and the Constitutional rights of the arrestee, the accused
has a right to get a certified copy of such remand report."
18. In Fr.Jose Poothrikkayil and others v. Union of India and
another (2008 (4) KHC 902), referring to Section 167(1) of the Code of
Criminal Procedure, it was held thus:
"24. The obligation under S.167(1) CrPC to furnish
copies of entries is certainly, according to me, not to give
the accused an opportunity to modulate and formulate his
defence. The purpose is very clear and certain. A person
is to be deprived of his liberty only in accordance with the
procedure established by law as per Art.21. Even before
he is found guilty, notwithstanding the presumption of
innocence, the Court is given the power to deprive a
person of his liberty. Strong reasons must be shown.
Such powers cannot be resorted to as a matter of course.
It is incumbent on the Investigating Officer to satisfy
himself first as stated in Jyothish (supra) that an arrest has
to be made. It is incumbent on him to satisfy the judicial
authority - the judicial Magistrate- that he has valid and just
reason for arresting a person and depriving him of his
personal liberty. He has the duty to apprise the Court of
the circumstances which must prompt the Court to resort to
the unpleasant assignment of denying a person liberty
even when the allegation against him is not proved to the
hilt. I reckon that the clear and unambiguous mandate of
S.167(1) CrPC is that a person shall not deprived of his
personal liberty unless there be satisfactory reasons. A
compromise between the high ideals of personal liberty
and the compelling needs of a proper investigation to
collect materials in the interests of the State and the polity
at large is reflected in S.167(1) CrPC. Therefore,
according to me, it is idle to contend that the accused have
been deprived of an opportunity to modulate their defence.
25. I must also note that every error committed by
an Investigating Officer or Magistrate cannot persuade this
Court to invalidate the action taken. Rule of law is not a
mere fetish. Rule of law must cater to justice in the
ultimate sense. It would be puerile and myopic for a Court
merely on seeing some inadequacy on the part of the
Investigating Officer or the Magistrate under S.167(1) CrPC
to invalidate the entire proceedings and action taken. The
duty is on every functionary under the Constitution to
translate into reality the preambular commitment to do
justice. Justice is the primary concern. S.167(1) deals with
procedural law. All rules of procedure are nothing but
handmaids of justice. Where the provisions of the Statute
and Rules are violated the Court has to see whether
notwithstanding the violation, such infraction affects the
root of the matter and is sufficient to invalidate the action
taken.
26. I am of the opinion that the decision of the
Karnataka High Court in Sudha Shivarame Gowda v. State
of Karnataka, 1992 STPL (LE-Crime) 9651 KAR is perhaps
the most apposite one on this aspect and rhymes with my
thoughts on the subject. I am in complete agreement that
the requirement of forwarding the entries in the case diary
cannot be reckoned as a rule of the thumb as to invalidate
the action as soon as that requirement is not satisfied.
Such a view would lead to the bizarre conclusion that the
Investigating Officer willing to oblige the accused (or an
innocuous omission on the part of the Magistrate to give
reasons under S.167(3) would deliver to the accused an
undeserved advantage. That cannot be the law at all."
19. A Division Bench in IN RE RAMAN VELU (1972 KLT 922)
held thus:
"Where, under S.167 or S.344 of the Code, the
Magistrate passes an order of remand of the accused to
custody, he performs a judicial act. That being so, the
report, if any, submitted by the police is to furnish
necessary information, on the perusal and examination of
which the Magistrate has to take a decision as to whether
or not the accused is to be committed to custody, or
continued to be kept in custody, as the case may be. The
purpose of the "remand report" is a relevant consideration
in construing whether it is a 'public document' or not. What
forms the basis of a judicial decision, or what is used to
any extent in aid of a judicial decision, cannot but be a
public document in our view. We are, therefore, of the
opinion that the remand report submitted by the Police,
whether in relation to the remand under S.167, of
extension or remand under S.344 of the Code, is a public
document within the meaning of S.74 of the Evidence Act.
What is expected to be furnished to the court at the time of
moving for the remand or for the extension of the remand,
are the entries in the case diary which is a document
forming acts or record of acts of the investigating officer."
20. Now I shall deal with the question whether the contention that
the "illicit intercourse" within the meaning of Section 373 of the Indian
Penal Code should be for the purpose of "prostitution", is sustainable.
Section 373 of the Indian Penal Code reads as follows:
"373. Buying minor for purposes of prostitution,
etc.-- Whoever buys, hires or otherwise obtains
possession of any person under the age of eighteen years
with intent that such person shall at any age be employed
or used for the purpose of prostitution or illicit intercourse
with any person or for any unlawful and immoral purpose,
of knowing it to be likely that such person will at any age be
employed or used for any purpose, shall be punished with
imprisonment of either description for a term which may
extent to ten years, and shall also be liable to fine.
Explanation I.-- Any prostitute or any person
keeping or managing a brothel, who buys, hires or
otherwise obtains possession of a female under the age of
eighteen years shall, until the contrary is proved, be
presumed to have obtained possession of such female
with the intent that she shall be used for the purpose of
prostitution.
Explanation II.-- "Illicit intercourse" has the same
meaning as in section 372."
21. In Section 373 of the Indian Penal Code, the expressions
"prostitution" and "illicit intercourse" occur. Explanation II to Section 373
states that "illicit intercourse" has the same meaning as in Section 372.
Explanation II to section 372 defines "illicit intercourse" thus:
"Explanation II.-- For the purposes of this section
"illicit intercourse" means sexual intercourse between
persons not united by marriage or by any union or tie
which, though not amounting to a marriage, is recognised
by the personal law or custom of the community to which
they belong or, where they belong to different communities,
of both such communities, as constituting between them a
quasi marital relation."
22. Going by Explanation II to Section 372 of the Indian Penal
Code, sexual intercourse between persons not united by marriage or by
any union or tie constituting a quasi marital relation would amount to
illicit intercourse. That definition is incorporated into Section 373 of the
Indian Penal Code by the specific mention to that effect in Explanation II
therein. Section 373 of the Indian Penal Code applies where any
person buys, hires or otherwise obtains possession of any person under
the age of eighteen years. Such act should be with the intent that the
person concerned (victim) shall at any age be employed or used for the
purposes mentioned in the Section. The purposes mentioned in the
Section are: (a) prostitution; (b) illicit intercourse; or (c) any unlawful and
immoral purpose. To attract Section 373 IPC, it is not always necessary
that such intent must be established. It is sufficient if the offender
knows it to be likely that such person (victim) will at any age be
employed or used for any purpose mentioned in the Section. The
expressions "prostitution" and "illicit intercourse" are not used
conjunctively in Section 373, but they are used disjunctively. The "illicit
intercourse" within the meaning of Section 373 IPC need not be in the
process of prostitution. Even in the absence of prostitution, an illicit
intercourse would amount to an offence under Section 373 of the Indian
Penal Code, provided the other essential conditions are satisfied. The
contention that unless the victim is employed for prostitution, the
procurer is not guilty even if he had illicit intercourse with the victim, is
absolutely unsustainable, going by the ingredients of Section 373 of the
Indian Penal Code. The contention put forward by the learned counsel
that Explanation I to Section 373 would lend support to the contention
that illicit intercourse must be for the purpose of prostitution, is also
without substance. Explanation I provides for a presumption that any
prostitute or any person keeping or managing a brothel shall be
presumed to have obtained possession of the female under the age of
eighteen years with intent that she shall be used for the purpose of
prostitution. The presumption under Explanation I does not lead to the
conclusion that "illicit intercourse" within the meaning of Section 373
should be in the process of or for the purpose of or as part of
prostitution.
23. There are enough materials to arrive at the prima facie
conclusion that the petitioners are involved in the offence. At this stage,
it cannot be expected to explain the role of each and every accused with
precision and with all particulars, particularly when there are about 150
accused in the case and when the case involves complex factual
situation.
24. The petitioners are allegedly rich and influential people. If
they are released on bail at this stage, it is most likely that they would
terrorise, intimidate or influence the witnesses and tamper with the
evidence. It is also likely that the petitioners would make themselves
scarce and flee from justice. I am not inclined to grant bail to the
petitioners at this stage.
For the aforesaid reasons, the Bail Applications are
dismissed. Adequate medical attention shall be provided to
Maideen, accused No.114.
(K.T.SANKARAN)
Judge
an Investigating Officer or Magistrate cannot persuade this
Court to invalidate the action taken. Rule of law is not a
mere fetish. Rule of law must cater to justice in the
ultimate sense. It would be puerile and myopic for a Court
merely on seeing some inadequacy on the part of the
Investigating Officer or the Magistrate under S.167(1) CrPC
to invalidate the entire proceedings and action taken. The
duty is on every functionary under the Constitution to
translate into reality the preambular commitment to do
justice. Justice is the primary concern. S.167(1) deals with
procedural law. All rules of procedure are nothing but
handmaids of justice. Where the provisions of the Statute
and Rules are violated the Court has to see whether
notwithstanding the violation, such infraction affects the
root of the matter and is sufficient to invalidate the action
taken.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5786 of 2011()
SUNNY, S/O. JOSEPH,
... Petitioner
Vs
STATE, REPRESENTED BY THE
The Hon'ble MR. Justice K.T.SANKARAN
Dated :08/08/2011
These Bail Applications are filed under Section 439 of the Code
of Criminal Procedure by accused Nos.45,103, 47, 114 and 104 in
CBCID Crime No.111/CR/HHWII/EKM/11 (North Paravoor Police Station
Crime No.346 of 2011). The offences alleged against the accused are
under Sections 366-A, 354, 372, 373, 376 (2) (g), 506 (i), 342 and 202
read with Section 34 of the Indian Penal Code and Section 23 of the
Juvenile Justice (Care and Protection of Children) Act.
2. The details regarding the name of the accused, his rank as an
accused, date of his arrest and the Bail Application number are shown in
the table below:
Sl.
No. Name of the accused Rank Date of arrest Bail Application
1 Sunny 45 30/6/2011 B.A. 5786 of 2011
2 Rajasekharan Nair @ B.A. 5947 of 2011
Rajan 103 08/07/11
3 R.Mohan Kumar 47 01/07/11 B.A. 5972 of 2011
4 Maideen 114 14/07/11 B.A. 5999 of 2011
Magudeswaran 104 08/07/2011 B.A. 6028 of 2011
3. The gist of the prosecution case is the following: The victim, a
girl aged below 16 years, was taken to several places within the State
and in the neighbouring States under force and threat and she was
compelled to have sexual intercourse with several persons against her
will and without her consent for the period from 3-5-2010. The First
Information Statement was given by the victim on 7-3-2011. The father
of the victim is a real estate broker and a person who supplies junior
artists to film makers. On 3-5-2010, the victim was taken by her father
to a hotel at Panampilly Nagar, Ernakulam, stating that they had to meet
`film people'. After leaving the victim in the room in the hotel, father of
the victim left the place. The victim was raped by the man who was in
the room. Thereafter, on that date and on the following days, she was
taken to several places in and around Ernakulam city, Mysore, Ooty,
Thiruvananthapuram, Kannur, Chalakkudy, Athirappilly, Munnar,
Bangalore, Thrissur, Mapranam, Coimbatore etc. On 1-1-2011, the
father of the victim took her to Coimbatore and entrusted her to a man
and woman. They took the victim to a house where she was locked.
She was subjected to forceful sex by twelve persons who visited the
house. The victim escaped from that house and after reaching her
native place, she disclosed the matters to her paternal uncle and other
relatives. They advised the victim to inform the matter to the police.
4. The victim stated in the First Information Statement that her
father used to entrust her with some brokers. The mother of the victim,
initially opposed the misdeeds of her husband, but she was silenced by
meting out cruelty to her by her husband. The father of the victim also
threatened and terrorized the victim and her brother. On one occasion,
the victim was taken by his father to Varapuzha bridge and he
threatened that the victim would be thrown to the river. The father used
to hang the brother of the victim upside down on the fan to pressurize
the victim to go for sex work. The victim also stated in the First
Information Statement that her father used to give her pills to prevent
pregnancy. The victim had even to undergo treatment in two hospitals
as a result of subjecting her to excessive sexual intercourse. The victim
stated that her father used to receive money for presenting her to
several persons.
5. Heard Sri.K.Abdul Jawad, Sri.M.T.Suresh Kumar, Sri.K.Sunil
Kumar, Sri.Mansoor.B.H. and Anil K.Muhamed, learned counsel
appearing for the petitioners, and Sri.V.Tekchand and Sri.V.Manu, the
learned Public Prosecutors.
6. The allegation against Accused No.45 Sunny (Petitioner in
B.A. No. 5786 of 2011) is that he, along with Anoop (accused No.150),
procured the victim girl with the help of Omana (Accused No.14). The
girl was taken in a car to Vengoor, where Sunny owns a property. They
subjected the girl to sexual abuse. They gave Rupees Five hundred as
tip to the girl and Rupees Five thousand to Omana, the pimp. It is
alleged that Sunny contacted one Lissy, who arranged a shed near
Vengoor Dam, where the offence was committed.
7. Rajasekharan Nair @ Rajan (accused No.103) is aged 70
years. He was working in Navy. He purchased a property very near to
the house of the victim. The property was purchased with the help of
accused No.1, father of the victim. The family of the victim and accused
No.103 became close to each other. The father of the victim requested
for the help of accused No.103 to advise the victim girl against the
excessive use of mobile phone by her. It is alleged that under the
pretext of advising the victim, accused No.103 could manage to get a
convenient place in the house of the victim. He made sexual advances
to the victim and eventually he had sexual intercourse with the girl on
different occasions. The victim girl used to call accused No.103
"appooppan" (grandfather).
8. The allegation against accused No.47 R.Mohan Kumar is that
he had sexual intercourse with the victim girl at Coimbatore. It is alleged
that accused No.32 Shaji procured the girl and handed over to accused
No.47. The victim was detained by accused No.32 Shaji and his wife
Jessy (accused No.15). It is alleged that Shaji and Jessy are involved in
a sex racket. They were involved in Kanjikode sex scandal in the year
2002. They shifted to Coimbatore and purchased a house, where the
immoral activities are facilitated. It is alleged that accused No.47
R.Mohan Kumar, who conducts real estate business in Coimbatore, took
the girl to a storied building where he conducts the real estate office. He
had sexual intercourse with the girl in the bedroom in the upstair of that
building.
9. Accused No.114 Maideen is a dealer in scrap. It is alleged
that he has acquaintance with Omana (accused No.14). Omana and
the father of the victim arranged the victim to Maideen who had sexual
intercourse with the girl in his bedroom. It is alleged that Maideen paid
Rupees Five thousand to the father of the victim and Rupees Five
hundred as tip to the girl.
10. Magudeswaran, accused No.104, had sexual relationship
with the girl on two occasions, one in the house of Julie (accused
No.105) and on another occasion in a lodge near Chottanikkara. Julie
procured the girl for Magudeswaran, who is a professional money
lender.
11. Sri.M.T.Suresh Kumar, the learned counsel appearing for
accused No.47, submitted the following: Accused No.47 was falsely
implicated in the case at the instance of accused No.32 Shaji, with
whom Mohan Kumar is on inimical terms. Even going by the
prosecution case, the victim accepted remuneration and that implies her
consent. The allegation is that accused No.47 had sexual intercourse
with the girl in February, 2011. By that time, she had attained sixteen
years of age. Therefore, Section 376 of the Indian Penal Code is not
attracted. The learned counsel also submitted that Section 373 of the
Indian Penal Code is also not attracted, since, according to the counsel,
the expression "illicit intercourse" in Explanation II to Section 373 should
be read along with the expression "prostitution" occurring in Section 373.
The counsel submits that unless the girl is employed for prostitution, the
procurer is not guilty under Section 373, even if he had sexual
intercourse with the girl.
12. Advocate Sri.Abdul Jawad, learned counsel appearing for
accused No.114, submitted that there is nothing to indicate that the
accused knew or had reason to believe that the victim was below the
age of sixteen years. There is no material to arrive at the conclusion
that the accused had sexual intercourse with the girl knowing her to be
under the age of sixteen years. The counsel submitted that accused
No.114 suffered heart attack on three occasions.
13. Sri.Mansoor.B.H., the learned counsel appearing for accused
No.103, submitted that there is no mention in the First Information
Statement or in the statement of the victim under Section 164 of the
Code of Criminal Procedure about the complicity of accused No.103.
The said accused is a mahazar witness. The counsel submitted that
accused No.1, the father of the victim, after his release on bail,
demanded Rupees Two lakhs from the accused and he is implicated in
the case only on the ground that he refused to accede to the illegal
demand of accused No.1.
14. The counsel appearing for the petitioners submitted that the
remand reports produced in Court do not clearly state on what materials
the petitioners are implicated and therefore, the petitioners are entitled
to be released on bail. The counsel submitted that, at this stage, the
accused can rely only on the remand reports and their fundamental
freedom cannot be curtailed on scanty materials and insufficient data.
15. The contention that it must be shown that the accused was
aware of the victim being under the age of sixteen years so as to
constitute the offence under Section 376 of the Indian Penal Code, was
rejected by this Court while dismissing some of the Bail Applications in
the same Crime, wherein it was held thus:
"The knowledge of the accused about the age of the
victim is irrelevant. The question is whether the victim was
under 16 years of age at the relevant time. Section 376 of
the Indian Penal Code provides that a man is said to
commit rape who has sexual intercourse with a woman,
whether with or without her consent, when she is under
sixteen years of age. A girl under 16 years of age cannot
give a valid consent for sexual relationship. Even with such
consent, the act would amount to rape under Section 376
of the Indian Penal Code. Even when the girl, who is really
under sixteen years of age, makes a false representation
that she is above sixteen years, sexual intercourse with her
by a man would amount to rape. "
16. The contention raised by the counsel that the remand reports
are lacking in material particulars is also without merit. I have gone
through the remand reports. Necessary details are available in the
remand reports. A remand report is for the purpose of enabling the
Magistrate to satisfy himself of the necessity to remand the accused. A
particular remand report has significance only for the period during
which the accused is remanded, unless the same is relied on for the
remand of the accused for subsequent period also. A remand report
need not contain all the details which are available in the First
Information Statement and the other materials collected during
investigation. The remand report need only contain sufficient materials
to arrive at the conclusion that detention of the accused is necessary or
the continued detention of the accused is necessary. In other words, a
remand report is not a substitute for the material papers to be supplied
on appearance of the accused. An accused is not entitled to contend
that he is entitled to be released on bail on the ground that all the
materials collected during the investigation are not reproduced in the
remand report.
17. In Kamarudheen v. S.H.O., Muvattupuzha Police Station
(I.L.R. 2010 (3) Kerala 870), the following contention was raised by the
accused:
"Except an allegation in the remand report dated
22.7.2010 that A-10 is involved in the criminal conspiracy,
there is total lack of any material to support or substantiate
the said allegation. On the contrary the said remand report
refers to the confession by Yunus (A-4) regarding the
criminal conspiracy hatched by the accused persons who
do not include A-10. In the remand extension report dated
4.8.2010 also, there is no incriminating material relied on
by the investigating officer so as to justify the continued
detention of A-10. No weapon has been recovered from A-
10. When the remand report dated 22.7.2010 and remand
extension report dated 4.8.2010 do not contain any
incriminating material or circumstance against A-10, it is
not open to the Public Prosecutor to elicit grounds or
circumstances which are not referred to in the remand
reports. A remand report is a vital document which should
contain each and every ground on which a person accused
of an offence is sought to be remanded to custody.
In Kamarudheen's case, the aforesaid contention was answered thus:
"16. It is true that the remand report dated
22.7.2010 and the remand extension report dated 4.8.2010
pertaining to A-10 do not make mention of all the
incriminating circumstances now relied on against him.
The Cr.P.C. does not even use the expression "remand"
during the crime stage (investigation stage) of a case.
Section 167 Cr.P.C. only uses the expression "detention"
at that stage. It is only at the post-cognizance stage that
the Cr.P.C. uses the expression "remand" (vide Section
309(2) Cr.P.C.). However, by way of long usage or
practice, the process of the Magistrate authorizing the
detention of an accused person during the stage of
investigation also is understood as "remand".
17. There is no provision in the Cr.P.C. requiring the
Police Officer to submit a "remand report". But under
Section 167 Cr.P.C. it is imperative that the Police Officer
should send along with the accused a copy of the entries in
the Police diary which he is bound to maintain under
section 172 Cr.P.C. Usually copies of the entries in the
Police diary are not separately sent to the Magistrate. A
gist of the above entries in the Police diary alone is
incorporated by the Police Officer in the remand report or
in the remand extension report. The purpose of filing such
reports and the purpose of incorporation of the diary
entries in such reports is to enable the Magistrate to decide
whether he should authorize the detention or further
detention of the accused to Police or judicial custody, as
the case may be, or to release the accused. Bearing in
mind the purpose and significance of the remand report
and the Constitutional rights of the arrestee, the accused
has a right to get a certified copy of such remand report."
18. In Fr.Jose Poothrikkayil and others v. Union of India and
another (2008 (4) KHC 902), referring to Section 167(1) of the Code of
Criminal Procedure, it was held thus:
"24. The obligation under S.167(1) CrPC to furnish
copies of entries is certainly, according to me, not to give
the accused an opportunity to modulate and formulate his
defence. The purpose is very clear and certain. A person
is to be deprived of his liberty only in accordance with the
procedure established by law as per Art.21. Even before
he is found guilty, notwithstanding the presumption of
innocence, the Court is given the power to deprive a
person of his liberty. Strong reasons must be shown.
Such powers cannot be resorted to as a matter of course.
It is incumbent on the Investigating Officer to satisfy
himself first as stated in Jyothish (supra) that an arrest has
to be made. It is incumbent on him to satisfy the judicial
authority - the judicial Magistrate- that he has valid and just
reason for arresting a person and depriving him of his
personal liberty. He has the duty to apprise the Court of
the circumstances which must prompt the Court to resort to
the unpleasant assignment of denying a person liberty
even when the allegation against him is not proved to the
hilt. I reckon that the clear and unambiguous mandate of
S.167(1) CrPC is that a person shall not deprived of his
personal liberty unless there be satisfactory reasons. A
compromise between the high ideals of personal liberty
and the compelling needs of a proper investigation to
collect materials in the interests of the State and the polity
at large is reflected in S.167(1) CrPC. Therefore,
according to me, it is idle to contend that the accused have
been deprived of an opportunity to modulate their defence.
25. I must also note that every error committed by
an Investigating Officer or Magistrate cannot persuade this
Court to invalidate the action taken. Rule of law is not a
mere fetish. Rule of law must cater to justice in the
ultimate sense. It would be puerile and myopic for a Court
merely on seeing some inadequacy on the part of the
Investigating Officer or the Magistrate under S.167(1) CrPC
to invalidate the entire proceedings and action taken. The
duty is on every functionary under the Constitution to
translate into reality the preambular commitment to do
justice. Justice is the primary concern. S.167(1) deals with
procedural law. All rules of procedure are nothing but
handmaids of justice. Where the provisions of the Statute
and Rules are violated the Court has to see whether
notwithstanding the violation, such infraction affects the
root of the matter and is sufficient to invalidate the action
taken.
26. I am of the opinion that the decision of the
Karnataka High Court in Sudha Shivarame Gowda v. State
of Karnataka, 1992 STPL (LE-Crime) 9651 KAR is perhaps
the most apposite one on this aspect and rhymes with my
thoughts on the subject. I am in complete agreement that
the requirement of forwarding the entries in the case diary
cannot be reckoned as a rule of the thumb as to invalidate
the action as soon as that requirement is not satisfied.
Such a view would lead to the bizarre conclusion that the
Investigating Officer willing to oblige the accused (or an
innocuous omission on the part of the Magistrate to give
reasons under S.167(3) would deliver to the accused an
undeserved advantage. That cannot be the law at all."
19. A Division Bench in IN RE RAMAN VELU (1972 KLT 922)
held thus:
"Where, under S.167 or S.344 of the Code, the
Magistrate passes an order of remand of the accused to
custody, he performs a judicial act. That being so, the
report, if any, submitted by the police is to furnish
necessary information, on the perusal and examination of
which the Magistrate has to take a decision as to whether
or not the accused is to be committed to custody, or
continued to be kept in custody, as the case may be. The
purpose of the "remand report" is a relevant consideration
in construing whether it is a 'public document' or not. What
forms the basis of a judicial decision, or what is used to
any extent in aid of a judicial decision, cannot but be a
public document in our view. We are, therefore, of the
opinion that the remand report submitted by the Police,
whether in relation to the remand under S.167, of
extension or remand under S.344 of the Code, is a public
document within the meaning of S.74 of the Evidence Act.
What is expected to be furnished to the court at the time of
moving for the remand or for the extension of the remand,
are the entries in the case diary which is a document
forming acts or record of acts of the investigating officer."
20. Now I shall deal with the question whether the contention that
the "illicit intercourse" within the meaning of Section 373 of the Indian
Penal Code should be for the purpose of "prostitution", is sustainable.
Section 373 of the Indian Penal Code reads as follows:
"373. Buying minor for purposes of prostitution,
etc.-- Whoever buys, hires or otherwise obtains
possession of any person under the age of eighteen years
with intent that such person shall at any age be employed
or used for the purpose of prostitution or illicit intercourse
with any person or for any unlawful and immoral purpose,
of knowing it to be likely that such person will at any age be
employed or used for any purpose, shall be punished with
imprisonment of either description for a term which may
extent to ten years, and shall also be liable to fine.
Explanation I.-- Any prostitute or any person
keeping or managing a brothel, who buys, hires or
otherwise obtains possession of a female under the age of
eighteen years shall, until the contrary is proved, be
presumed to have obtained possession of such female
with the intent that she shall be used for the purpose of
prostitution.
Explanation II.-- "Illicit intercourse" has the same
meaning as in section 372."
21. In Section 373 of the Indian Penal Code, the expressions
"prostitution" and "illicit intercourse" occur. Explanation II to Section 373
states that "illicit intercourse" has the same meaning as in Section 372.
Explanation II to section 372 defines "illicit intercourse" thus:
"Explanation II.-- For the purposes of this section
"illicit intercourse" means sexual intercourse between
persons not united by marriage or by any union or tie
which, though not amounting to a marriage, is recognised
by the personal law or custom of the community to which
they belong or, where they belong to different communities,
of both such communities, as constituting between them a
quasi marital relation."
22. Going by Explanation II to Section 372 of the Indian Penal
Code, sexual intercourse between persons not united by marriage or by
any union or tie constituting a quasi marital relation would amount to
illicit intercourse. That definition is incorporated into Section 373 of the
Indian Penal Code by the specific mention to that effect in Explanation II
therein. Section 373 of the Indian Penal Code applies where any
person buys, hires or otherwise obtains possession of any person under
the age of eighteen years. Such act should be with the intent that the
person concerned (victim) shall at any age be employed or used for the
purposes mentioned in the Section. The purposes mentioned in the
Section are: (a) prostitution; (b) illicit intercourse; or (c) any unlawful and
immoral purpose. To attract Section 373 IPC, it is not always necessary
that such intent must be established. It is sufficient if the offender
knows it to be likely that such person (victim) will at any age be
employed or used for any purpose mentioned in the Section. The
expressions "prostitution" and "illicit intercourse" are not used
conjunctively in Section 373, but they are used disjunctively. The "illicit
intercourse" within the meaning of Section 373 IPC need not be in the
process of prostitution. Even in the absence of prostitution, an illicit
intercourse would amount to an offence under Section 373 of the Indian
Penal Code, provided the other essential conditions are satisfied. The
contention that unless the victim is employed for prostitution, the
procurer is not guilty even if he had illicit intercourse with the victim, is
absolutely unsustainable, going by the ingredients of Section 373 of the
Indian Penal Code. The contention put forward by the learned counsel
that Explanation I to Section 373 would lend support to the contention
that illicit intercourse must be for the purpose of prostitution, is also
without substance. Explanation I provides for a presumption that any
prostitute or any person keeping or managing a brothel shall be
presumed to have obtained possession of the female under the age of
eighteen years with intent that she shall be used for the purpose of
prostitution. The presumption under Explanation I does not lead to the
conclusion that "illicit intercourse" within the meaning of Section 373
should be in the process of or for the purpose of or as part of
prostitution.
23. There are enough materials to arrive at the prima facie
conclusion that the petitioners are involved in the offence. At this stage,
it cannot be expected to explain the role of each and every accused with
precision and with all particulars, particularly when there are about 150
accused in the case and when the case involves complex factual
situation.
24. The petitioners are allegedly rich and influential people. If
they are released on bail at this stage, it is most likely that they would
terrorise, intimidate or influence the witnesses and tamper with the
evidence. It is also likely that the petitioners would make themselves
scarce and flee from justice. I am not inclined to grant bail to the
petitioners at this stage.
For the aforesaid reasons, the Bail Applications are
dismissed. Adequate medical attention shall be provided to
Maideen, accused No.114.
(K.T.SANKARAN)
Judge
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