Partly allowed

Moidutty v. State of Kerala

Kerala HC20 Mar 2013Bail Appl./1663/2013

Case brief

AI extract

What is this about?

The High Court of Kerala granted bail to two accused charged with serious sexual offences. Instead of immediate release, it imposed strict conditions, including surrendering if a Magistrate-recorded victim statement implicates them, and daily reporting if not accused.

What did the court decide?

Bail granted subject to surrender if victim implicates petitioner before Magistrate; otherwise release on bond with strict conditions including reporting and passport surrender.

Moidutty Vs State of Kerala — Bail and Remand | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.BHAVADASAN

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WEDNESDAY, THE 20TH DAY OF MARCH 2013/29TH PHALGUNA 1934

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Bail Appl..No. 1663 of 2013 ()

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------------------------------CRIME NO. 549/2012 OF CHEVAYOOR POLICE STATION , KOZHIKODE DISTRICT

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APPLICANTS/1ST AND 2ND ACCUSED:

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1. MOIDUTTY, AGED 44 YEARS, S/O. MUHAMMED KALAMBAN HOUSE, P.O.EDAYUR, VALANCHERRY (VIA), TIRUR TALUK, MALAPPURAM DISTRICT, (SHOWN AS SALEEM KUNHIPAKKA IN THE F.I.R)

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2. MUHAMMED SATHAR,S/O. KOYANNI HAJI, AGED 40 YEARS, PATTAPURATH HOUSE, P.O. VALANCHERRY, TIRUR TALUK, MALAPPURAM DISTRICT. (SHOWN AS SATHAR IN THE F.I.R.)

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BY SRI.P.VIJAYA BHANU,SENIOR ADVOCATE ADV. SMT.M.A.SHEEBA SRI.VIPIN NARAYAN

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13-03-2013, ALONG WITH BA.NO.1666 OF 2013, THE COURT ON 20-03-2013 PASSED THE FOLLOWING:

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sts

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P. BHAVADASAN, J.

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- - - - B.A. Nos. 1663 & 1666 of 2013

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- - - - Dated this the 20^th day of March, 2013.

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ORDER

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As common issues arise for consideration in these

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bail applications and as one of the parties is common in both the applications, these applications are being disposed of by a common order.

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The petitioner in B.A. 1666 of 2013 is the fifth accused in Crime No. 659 of 2012 of Medical College Police Station, Kozhikode is also the first accused in Crime No.549 of 2012 of Chevayoor Police Station. In both the crimes, the petitioner is alleged to have committed offences punishable under Sections 376, 366A and 109 read with Section 34 of Indian Penal Code. The second petitioner in B.A. 1663 of 2013 who is the second accused in Crime No. 549 of 2012 too stands accused of the same offences.

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The first petitioner in B.A.1663 of 2013 is a

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Contractor by profession and is a man of considerable

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B.As.1663 & 1666/2013.

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standing in the society. He used to undertake constructions in various places and the second petitioner in B.A.1663 of 2012 is closely associated with him in his business. It is pointed out that the family of the victim was engaged in rent a car business and the first petitioner in B.A.1663 of 2012 used to hire vehicles from them. It is pointed out that the mother of the victim was arrested in Crime No. 568 of 2012 in relation to an incident which took place on 23.10.2012 on the allegation of having committed offences punishable under the Immoral Traffic (Prevention) Act. The first petitioner would say that at that time the victim approached the first petitioner and sought a sum of Rs.10,000/- from him pointing out that her mother had been arrested in relation to the business of rent a car and she needed money to get her out on bail. The first petitioner had given the amount. The first petitioner would say that he had nothing else to do with the victim and the mentioning of the name of the petitioners in the FIR as first

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B.As.1663 & 1666/2013.

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and second accused is on a wild imagination and they had nothing to do with the act which resulted in the registration of Crime No.549 of 012 or the offences mentioned therein.

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In B.A.1666 of 2013 it is pointed out by the petitioner that his name did not initially figure in the FIR, but later on his name was also added. According to the petitioners, if the statement of the victim is taken under Section 164 Cr.P.C. or if the petitioners are allowed to surrender before the Magistrate or a statement of the victim is taken, it would be revealed that the petitioners have nothing to do with the acts which led to the registration of the crimes and that they are innocent. They pray that they may not be allowed to be arrested on the basis that their names appear in the statements under Section 161 Cr.P.C. said to have been given by the victim to the police which according to the petitioners were not voluntary and was due to influence and other extraneous considerations. Petitioners would point out that they have

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B.As.1663 & 1666/2013.

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no other way of proving their innocence. They undertake that if the statement of the victim before the Magistrate when they appear before the Magistrate implicates them, they shall at once surrender before the Magistrate and appropriate steps may be taken. But they pray that they may not be sent behind the bars solely based on the statement under Section 161 Cr.P.C.

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Learned Additional Director General of Prosecution on behalf of the State opposed the applications. It was pointed out by him that the name of the petitioners figure in the records and they cannot say that they are innocent. But the Addl.D.G.P. took no objection to the course suggested by the petitioners that they will appear before the Magistrate concerned and the statement of the victim may be taken and if the victim implicates the accused, the course suggested by the petitioners may be followed.

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B.As.1663 & 1666/2013.

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The allegations if true are indeed serious and of grave nature. The petitioners are accused of having committed offences punishable under Sections 376, 366A and 109 I.P.C. Both the petitioners would say that they had not indulged in any act which would make them a privy to the incidents which led to the registration of the crimes. While they would say that they did have contacts with the victim, that was on the basis of the fact that for the business purposes they used to hire vehicles from the mother of the victim who was running rent a car business. The petitioners would assert that they have not committed any sexual assault on the victim nor they have taken her to any place for that purpose nor involved in any other act to subject the victim to sexual harassment.

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Usually, this court will not interfere with the

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investigation, that is the prerogative of the police. But here is a case where strong assertion is made by the petitioners

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B.As.1663 & 1666/2013.

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that due to political and other reasons, they are being falsely implicated to see that they are behind the bars even though they have not committed any act which would attract the offences. They also expressed their willingness to appear before the Magistrate and if on a statement taken form the victim, it is found that the victim implicates the accused, they will at once surrender before the Magistrate and face the consequences. They also point out that they may not be allowed to languish in jail merely because the victim had occasion to mention their names due to other reasons though they were not involved in the incident.

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After having given anxious consideration and after having heard learned Senior Counsel for the petitioners and the learned Addl.D.G.P. who pointed out the risk involved and the petitioners being willing to take that risk, it is felt that in the interests of justice and in the light of the facts narrated in the applications, it is only proper that this court adopts the course which is not normally

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B.As.1663 & 1666/2013.

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done. But when exceptional circumstances are presented before court, appropriate remedial measures will have to be adopted.

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These applications are disposed of as follows:

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I) The petitioners shall appear before the Magistrate concerned on 27.3.2013, who shall have the statement of the victim/victims taken not in the presence of the petitioners, and if the victim/victims implicates/implicate the accused or states anything which shows the involvement of the accused/petitioners in the commission of the crimes, the petitioners shall surrender before the Magistrate concerned and the learned Magistrate then take such steps as are available to him in accordance with law and if the custodial interrogation of the petitioners is sought for by the Investigating Officer, that shall also be considered.

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i) The investigating officer concerned shall have the victim/victims produced before the Magistrate concerned on 27.3.2013 and ensure that there is

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B.As.1663 & 1666/2013.

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no contact between the victim/victims and the petitioners.

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II) If on the other hand, the statement of the victim/victims does/do not show the involvement of the petitioners in the respective crimes, and the victim/victims does/do not attribute any role or part to the petitioners in the incidents which led to the registration of the crimes, then,

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(i) the petitioners shall surrender before the Investigating Officer concerned, who, after interrogation, shall produce the petitioners before the Magistrate court concerned, which court, on applications for bail being moved by the petitioners shall release them on bail in the respective crimes on each of them executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two solvent sureties for the like sum each to the satisfaction of the said court.

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ii) In such an eventuality, the learned Magistrate may ensure the identity of the sureties and the

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B.As.1663 & 1666/2013.

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veracity of the tax receipts produced by the sureties for the purpose of executing the bond.

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iii) Petitioners shall report before the Investigating Officer on every Wednesday between 9 a.m. and 11 a.m. till final report is laid.

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iv) Petitioners shall surrender their passports, if any, before the Magistrate concerned.

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v) Petitioners shall not leave State of Kerala without the prior permission of the Magistrate concerned.

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vi) Petitioners shall not tamper or attempt to tamper with the evidence or influence or try to influence the witnesses.

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vii) If any of the conditions is violated, bail granted to the petitioners shall stand cancelled, and the JFCM concerned may take such steps as are available to him in law.

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B.As.1663 & 1666/2013.

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Communicate a copy this order to the JFCM Court

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concerned forthwith.

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sb.

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P. BHAVADASAN, JUDGE

Moidutty v. State of Kerala

Case brief

What is this about?

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Moidutty v. State of Kerala

Case brief

What is this about?

What did the court decide?

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