Kerala High Court
Sachin Sankar vs State Of Kerala on 16 December, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938
Crl.MC.No. 7238 of 2015 ()
---------------------------
CRIME NO. 4037/2014 OF KARUNAGAPPALLY POLICE STATION, KOLLAM DATED
16.12.2014
PETITIONER(S)/ACCUSED:
---------------------
SACHIN SANKAR, AGED 36 YEARS,
S/O. V.N SANKAR, RESIDING AT VEERAMANGALATH HOUSE,
PANAVALLY P.O, PANAVALLY VILLAGE, CHERTHALA THALUK,
ALAPPUZHA DISTRICT
BY ADV. SMT.TISSY ROSE K CHERIYAN
RESPONDENT(S)/STATE & COMPLAINANT:
----------------------------------
1. STATE OF KERALA
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 31
2. CIRCLE INSPECTOR OF POLICE/INVESTIGATING OFFICER,
KARUNAGAPPALLY POLICE STATION, KARUNAGAPPALLY,
KOLLAM DISTRICT 690 544
3. SUB INSPECTOR OF POLICE/INVESTIGATING OFFICER,
KARUNAGAPPALLY POLICE STATION, KARUNAGAPPALLY,
KOLLAM DISTRICT 690 544
4. SURAN, AGED 61 YEARS,
S/O. SHANMUGHAN, MUNDAKATHIL HOUSE, MARU SOUTH,
ALUMKADAVU P.O, KARUNAGAPPALLY,
KOLLAM DISTRICT, PIN 690 573.
* ADDL. R5 IMPLEADED
5. MISS.SHILPA SURAN, AGED 24, D/O.SURAN,
MUNDAKATHIL HOUSE, MARUTHUR KULANGARA SOUTH,
ALAMKADAVU P.O., KARUNAAGAPALLY, KOLLAM.
* IS IMPLEADED AS ADDL.R5 AS PER ORDER DATED 1.12.2015 IN
CRL.M.A.11156/2015 IN CRL.M.C.7238/2015.
R5 BY ADVS. SRI.ALAN PAPALI
SRI.NISHIL.P.S.
SRI.J.VIMAL
R1 TO R3 BY PUBLIC PROSECUTOR SMT.MADHUBEN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
03.11.2016, ALONG WITH CRMC. 596/2016, CRMC. 1941/2016, THE COURT
ON 19.12.2016 PASSED THE FOLLOWING:
Crl.MC.No. 7238 of 2015 ()
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
ANNEXURE A1 TRUE COPY OF FIR IN CRIME NO 4037/14 DATED 16-12-2014
BEFORE THE KARUNAGAPPALLY POLICE STATION
ANNEXURE A1(A) TRUE COPY OF FIS IN CRIME NO 4037/14 DATED 16-12-2014
BEFORE THE KARUNAGAPPALLY POLICE STATION
ANNEXURE A2 TRUE COPY OF PRINTOUT OF THE G-MAIL CHAT HISTORY GIVEN BY
THE VICTIM TO THE ACCUSED/PETITIONER
ANNEXURE A3 TRUE COPY OF THE DIVORCE PETITION NO 221/14 DATED
21-04-2014
ANNEXURE A4 A COPY OF THE GUARDIAN AND WARD PETITION NO 526/14 ON
13-08-2014
ANNEXURE A5 A COPY OF PRINTOUT OF THE SMS GIVEN BY THE VICTIM TO THE
ACCUSED/PETITIONER
ANNEXURE A6 A COPY OF JUDGMENT DATED 06-01-2015 IN W.P(CRL.) NO
537/2014 PASSED BY THIS HONOURABLE COURT
ANNEXURE A7 A COPY OF JUDGMENT 20-10-2015 IN CRL.M.C NO 2987/2015
PASSED BY THIS HONOURABLE COURT
ANNEXURE A8 TRUE COPY OF THE ORDER IN CRL.M.A.10746/2015 IN CRL.M.C.
7238/2015 DATED 16.11.2015 PASSED BY THIS HONOURABLE HIGH COURT.
ANNEXURE A9 TRUE COPY OF THE REMAND APPLICATION DATED 14.01.2016.
ANNEXURE A10 TRUE PHOTOCOPY OF THE NEWS PAPER ITEM PUBLISHED IN
MATHRUBHOOMI DAILY DATED 15.01.2016
ANNEXURE A11 TRUE PHOTOCOPY OF THE NEWS PAPER ITEM PUBLISHED IN
MALAYALA MANORAMA DAILY DATED 15.01.2016.
ANNEXURE A12 TRUE PHOTOCOPY OF THE NEWS PAPER ITEM PUBLISHED IN FLASH
EVENING DAILY DATED 16.01.2016
RESPONDENT(S)' EXHIBITS
-----------------------
ANNEXURE I A TRUE COPY OF THE ORDER DATED 24.02.2016
ANNEXURE II A COPY OF THE STATEMENT GIVEN BY THE VICTIM U/S.164 OF
CR.P.C. BEFORE THE LEARNED JFCM-II, KOTTARAKKARA ON 29.01.2015.
/TRUE COPY/
P. S. TO JUDGE
dpk
SUNIL THOMAS, J.
- - - - - - - - - - - - - - - - - -
Crl.M.C.Nos.7238 of 2015,
Crl.MC Nos.596 of 2016 & 1941 of 2016
- - - - - - - - - - - - - - - - - -
Dated this the 19th day of December, 2016
COMMON ORDER
Crl.M.C. 7238/2015 is filed by the sole accused in Crime No.4037/2014 of Karunagapally police station to quash the investigation in the above crime for offences punishable under Sections 354 C, 384, 376 and Sections 67,66A,66C of the IT Act.
2. Crl.M.C.No.596/2016 is filed by the defacto complainant in the above crime challenging the order in CMP No. 312/2016 dated 21/1/2016 by which the accused was granted bail.
3. Crl.M.C. No.1941/2016 is preferred by the State, represented by the Inspector of Police, Karunagapally Police station, challenging the order in CMP No. 589/2016 dated 24/2/2016, in the above crime by which the court below rejected the application for cancellation of bail granted to the accused in the above case.
4. The crux of the prosecution case, as is discernible from FIS and the available records is as follows:
5. The defacto complainant is the father-in-law of the Crl.M.C.No.7238/2015 & others 2 accused. The defacto complainant had two daughters and one son. The elder daughter was married to the accused and a child was born in the matrimonial relationship. The victim involved in the above crime is the 24 year old younger daughter of the defacto complainant. The allegation of the prosecution is that, on 1/12/2012, the accused took the nude photographs of the victim who is his wife's younger sister, while she was taking bath in the bathroom. On the next day, i.e. 3/10/2012, he showed the photographs to the victim and threatening that he will disclose it to outsiders and publish it in the media, committed rape of the girl. Subsequently, when the marriage of the victim girl was fixed with another person, to spoil it, accused uploaded her nude photographs into the Face Book account of the proposed bridegroom from the email account of the victim's brother, who was abroad at that time. The FI Statement was laid by the father of the victim on 16/12/2014 against his son in law. Investigation commenced and in the course of the investigation, statement of the victim under section 164 Cr.P.C. was recorded by the Magistrate. It was in tune with the case set up in the FIS. The accused absconded and was arrested only on 13/1/2016 at Vaikom, while he was traveling in a car. He was produced before the Crl.M.C.No.7238/2015 & others 3 Magistrate on 14/1/2016 and remanded. The police sought custody for six days but limited custody was granted from 11 am on 19/1/2016 to 5p.m.of 20/1/2016. On 21/1/2016, the accused was granted bail by the Magistrate by order in CMP No.312/2016, which is the subject matter of Crl.M.C.No..596/2016 preferred at the instance of the defacto complainant. Subsequently, the investigating agency filed CMP No.589/2016 alleging that the accused did not cooperate with the investigation and that material evidence could not be collected. Hence, they required more time for his custodial interrogation and sought to cancel the bail. It was dismissed by the order dated 24/2/2016 which is the subject matter of Cr.M.C.No.1941/2016 at the instance of the State.
6. The grievance of the State through the investigating agency is that the accused did not co-operate with the investigation and hence, his custody is required for further investigation. It is asserted that, though the accused was interrogated, he did not reveal the place from where and the mode by which, he uploaded the photos of the victim in the internet. He also did not disclose how and from where the messages to the victim and to the bride groom were also sent. The person who had harboured him at Mumbai and Crl.M.C.No.7238/2015 & others 4 Chenai and the places where he stayed could not be located with sufficient precision. Hence, his police custody was essential for further investigation.
7. Crl.MC. 7238/2016 is filed by the accused seeking to quash the entire criminal proceedings against him. Version of the accused is that while he was abroad, working in the merchant Navy, his wife, the elder daughter of the defacto complainant, started illicit relationship with outsiders. She used to make frequent midnight calls and had email chattings with several persons. This was confidentialy conveyed to him by the victim, supported with the print out of the alleged email chatting that her sister had with others. Consequently, the matrimonial relationship got strained. On coming to know about the source of information, the wife of the accused developed hatred and enmity towards the victim. In the meanwhile, the accused filed an application for divorce before the concerned court and in 2014, he also filed a petition for custody of the daughter before the Family Court, Alappuzha. In the meanwhile, the victim continued to keep him informed him about the movement of her sister and her family. The wife in the meanwhile initiated DV proceedings in Karunagapally Magistrate Court. The wife had, due to the Crl.M.C.No.7238/2015 & others 5 enmity towards the victim, vowed to retaliate.
8. In the course of the above transaction, it is claimed by the accused that the victim fell in love with the accused and started an intimate relationship with him. She wanted to marry him after he had divorced her sister. To substantiate this, the accused referred to various email chattings between the parties involved. Knowing these developments, the father compelled the victim to get married to one Sonu Kumar. The marriage was fixed to be held on 15/12/2014. In the meanwhile, the victim allegedly coerced the accused to spoil the proposed marriage and sought assistance of the accused. Accused claims that he refused to do it. However, he alleged that with the intention of retaliating against her sister, the wife of the accused might have sent few photographs of the victim from the email of her brother, to spite the younger sister. This resulted in spoiling of the marriage of the victim and the bridegroom's family withdrew from the matrimonial relationship. It was claimed by the accused that the email messages and photographs were not sent by him. He further claimed that the allegation of commission of rape by him was false and it was absolutely fabricated case to deny him the custody of the child. Crl.M.C.No.7238/2015 & others 6
9. In the meanwhile, alleging that the victim was in the illegal custody of her parents, W.P.(Crl.) No.537/2014 was filed by the accused before the Division Bench of this Court. The victim was directed to be produced and was produced by the father. The judgment dated 6/1/2015 of this Court shows that the victim had disclosed in the course of the proceeding that she was not in the illegal custody of any person. It was recorded. Hence, the writ petition was closed.
10. The present contention of the accused in the proceedings is that the victim had attained majority and was a graduate. In spite of this, FI statement was initiated not by the victim, but by the father. No written authority from the victim has been produced to show that he had filed the criminal proceedings for the benefit of the daughter. According to the accused, on the alleged date of the incident on 2/10/2012 and 3/10/2012, the victim was not available in the house and she was in the college preparing for her examination. It was further stated that on those days there were several persons in the house in connection with the function that was to take place there and hence the incident as alleged by the accused could not have taken place. It was further contended that the matrimonial dispute was pending Crl.M.C.No.7238/2015 & others 7 and the belated complaint ought to have been appreciated by the investigating agency in the back ground of animosity the defacto complainant and his elder daughter maintatiend towards the accused. It was alleged that the criminal proceeding was initiated to deny the lawful custody of the child sought by him through due process of law. It was further alleged that a high ranking police officer related to the defacto complainant was instrumental in initiating the criminal proceedings. The accused contended that he had no access to the email account of the brother of the victim.
11. In Crl.M.C. No.596/2016, the version of the petitioner therein is in tune with the case of the defacto complainant and hence not repeated. It was stated that on 15/12/2015 the marriage of the victim was proposed to be held. On 14/12/2015 the brother-in-law of the bridegroom came to the house of the defacto complainant and informed that they were withdrawing from the marriage. It was revealed by them that they had received the nude photographs of the victim sent from the email account of the son of the defacto complainant. The son also asserted that his email account was hacked and messages were sent by somebody else. When this was enquired with the daughter, Crl.M.C.No.7238/2015 & others 8 the victim revealed what had transpired. Consequently, the complaint was filed. The accused was arrested and remanded. However, the court below granted bail in a hurry and without taking into consideration the pending proceedings. It was contended that it was without considering the request of the prosecution for further custody of the accused. It was further contended that the order granting bail was illegal and improper. The learned Magistrate did not call for the case diary to satisfy himself that the investigation was completed especially in the background that in spite of the six days police custody sought, only a limited police custody was granted. It was further stated that the learned Magistrate did not call for the report from the Investigating officer and in fact, the learned Additional Public Prosecutor was absent on that day and hence he was not heard. Pursuant to the police custody, recovery was not effected which was also not noticed by the court below. Hence, the bail granted by the court below was in violation of the several decisions of the Supreme Court. The defacto complainant further contended that the learned Magistrate ought not have granted bail considering the very serious nature of the allegations.
12. Evidently, to prove the allegation under Section 376 Crl.M.C.No.7238/2015 & others 9 IPC and other ancillary offences, the prosecution is heavily relying on the statement of the victim, her father and the medical records. It is also seen that section 164 Cr.P.C.statetment of victim was also recorded. It is completely in consonance with the case set up by the defacto complainant. The wound certificate also to a certain extent corroborate the prosecution case. In the light of the above, prima facie there is some material to substantiate the allegation of prosecution. It is too early at this stage to hold that the prosecution is without any basis and even if the entire case put up by the accused is believed, in the nature of allegation under Section 376 IPC as set up by the victim, it will be difficult to disbelieve the contention of the victim. Essentially, the matter depends largely on the oral testimony of the victim. Hence, there is no merit in Cr.M.C.No.7238/2016, which is liable to be dismissed. Hence, I am not inclined to quash the above proceedings.
13. In the application for police custody, the investigating agency had highlighted that the mobile used for taking the photographs of the victim has to be recovered. The Laptop used for hacking the email of the brother of the victim, the gadgets from which the photos and messages Crl.M.C.No.7238/2015 & others 10 were uploaded to the email account of the victim's brother were also to be identified. The accused had stayed at Chennai and Mumbai and used a mobile. The persons who had been calling him have to be identified. The persons who had harboured the accused during his period of absconding are also to be identified, along with the places where he was hiding. It was also essential to ascertain the computer from which the objectionable photographs were uploaded, either in Mumbai or from Chennai. After police custody, the accused was produced on 20/1/2016. On the next day, by order dated 21/1/2016 he was granted bail. The court below held that offence under Section 354 IPC was a bailable offence and Section 66A of the IT Act was held to be unconstitutional by the Supreme Court in the decision in Shreya Singhal v. Union of India [2015 (2) KLT 1 (SC)]. It was further held that regarding the offence under section 376 IPC, this Court in another connected proceeding had opined that it was in the nature of a matrimonial dispute and that the veracity of allegation of rape was doubtful and appeared to be artificial. It was further opined that the police ought to have investigated from that angle also. It was also noted by the Magistrate that there were several other matrimonial disputes Crl.M.C.No.7238/2015 & others 11 pending between the parties. The observations made by this Court in Crl.M.A No.10746/2015 in Cr.M.C.No.7238/2015 that the story of rape appears to be artificial was made on the date when MC filed by the accused came up for admission. It was not a decision or finding arrived after evaluation of the materials on record. The court below ought not have relied on such initial observations.
14. It is pertinent to note that the court below while granting bail had held that the accused was produced back after the report of successful recovery. The bail order stated that the accused shall report before the police on specified dates for six months or till the final report is filed, whichever is earlier. The police, if they so wanted, could interrogate him during the above period. It was also held that the laptop and mobile have been recovered. The court also noted that the defacto complainant had moved the High Court for cancellation of the bail. In the above circumstances, bail was granted to the accused.
15. It is pertinent to note that the police report did not state that there was a successful completion of the recovery and investigation. The report only state that two items have been recovered. Even in the application filed later seeking Crl.M.C.No.7238/2015 & others 12 cancellation of the bail and to grant further police custody, the investigating agency had specifically stated that several matters needed further investigation, for which co-operation of the accused was essential. Further the custodial interrogation will be more effective than an ordinary interrogation since obviously the police have a free hand to interrogate the accused. It is clear from the averments of the investigating agency that after the accused was granted bail, he was not cooperating with the investigation and hence investigation got struck.
16. The State has filed an additional statement in Crl.MC.No.596/2016. The learned public prosecutor, submitted that they had sought six days police custody, but was granted only a limited custody for a short duration. They could only collect the mobile phone, Lap top and passport. The prosecution could not file an application for further police custody before the court below since in the meanwhile the bail was granted. Hence, they sought for cancellation of bail by filing an application as CMP No. 589/2016 to cancel the bail granted in CMP No.312/2016.
17. There is no doubt that the allegation is very serious of one involving offence under Section 376 IPC and offences Crl.M.C.No.7238/2015 & others 13 under the IT Act. The accused was absconding for one year. Evidently, he was moving around at various places. The investigating agency in fact wanted interrogation for six days, which the court below did not grant. In the above circumstances, the assertion of the investigating agency was that granting of bail to the accused had seriously affected the investigation, cannot be discarded lightly.
18. Learned counsel for the accused relying on the decision in Rajiv Thapar and Others v. Madan Lal Kapoor (2013 (1) KHC SN 39 ( SC) contended that while seeking relief under Section 482 of Cr.P.C.,if materials relied on by the accused is such, as would persuade a reasonable person to dismiss and condemn the actual basis of accusations as false, then High Court can exercise its power under section 482 of Cr.P.C. to quash the criminal proceedings. It related to the step by step proceedings adopted by the court while considering the question as to whether the matter is worth quashing. In Jayamol C.Chacko v. State of Kerala and Others [2014 (4) KHC 550], this Court had occasion to consider the question whether filing of an application under section 482 Cr.P.C. seeking to cancel the bail was sustainable or not.
Crl.M.C.No.7238/2015 & others 14
19. On the other hand, learned counsel for the defacto complainant, relied on a catena of decisions wherein scope of bail as provided under Sections 437, 439 Cr.P.C. coupled with the various legal propositions in regard to the quashing of criminal cases were considered.
20. The defacto complainant relied on decisions reported in Gurcharan Singh and Others v. State (Delhi Administration) and Raj Kumar Sharma And others v. State (Delhi Administration) (1978) 1 Supreme Court Cases 118) , State of Himachal Pradesh v. Wazir Chand And Others (1978) 1 Supreme Court Cases 130, Stae of Haryana v. Bhajan Lal ( AIR 1992 SC 604), Sita Ram & Others v. Motilal Nehru Farmers Training Institute (2008) 5 SCC 75), Narendra K.Amin ( Dr.) v. State of Gujarat ( 2008) 13 SCC 584), State of Gujarat v. Narendra K.Amin (2008) 13 SCC 594), Subodh Kumar Yadav v. State of Bihar and Anr. (AIR 2010 Supreme Court 802), Kanwar Singh Meena v. State of Rajasthan ( AIR 2013 Supreme Court 296), Rajiv Thapar And Others v. Madan Lal Kapoor ( 2013 ) 3 SCC 330), Mosiruddein Munshi v. Mohd Siraj ( 2015) 1 SCC ( Crl.)
281) and Shaileshbhai v. State of Gujarat ( 2014) 14 Crl.M.C.No.7238/2015 & others 15 SCC 33) . Relying on the above,it was contended that the moment it is found that bail was granted considering irrelevant facts, bail was liable to he cancelled.
21. Evidently, the case involved very serious offence and the matter was triable by the Sessions Court. Normally in such cases, the Magistrate courts refrain from granting bail largely on a premise that the sessions offences are involved. However, in the case at hand, it was not followed. Though the defacto complainant had a specific case that the Addl. Public Prosecutor was on leave on that day, it is not discernible from the impugned order. On the other hand, the impugned order says that both were heard. Hence, I believe the version of the court below, which is on record. It was further contended that the investigation was notcomplete. It was also contended that CD was not referred to by the court. The report of the police along with the production of the accused did not show any successful completion of recovery. CD also does not show that after granting of the bail to the accused, investigation has moved forward. In the light of the above, I am satisfied that the order of the court below granting bail by order in CMP NO. 312/2016 is not legally sustainable and hence is liable to be set aside.
Crl.M.C.No.7238/2015 & others 16
22. In the light of the above, it is clear that the bail granted to the accused contrary to the legal principles involved is liable to be set aside. Crl.M.C.No.1941/2016, which is filed by the prosecution challenging the order of dismissal in CMP No. 589/2016 is liable to be set aside and CMP No.596/2016 is liable to be allowed.
23. Consequently, the order in CMP No.312/2016 granting bail to the accused is also liable to be quashed. The same relief is sought by the defacto complainant in Crl.M.C. No.596/2016. In the light of the order sought by the prosecution which is also granted, no further orders are necessary in Crl.M.C.No. 7238/2016.
24. In the light of the above findings, I feel that the court below went wrong in considering the irrelevant facts for granting bail. The court below failed to notice that the allegations were very serious. The accused remained absent for a long period and the investigation was not complete. These are the relevant facts which the court ought to have considered. Hence, by considering the irrelevant materials, the court below arrived at wrong conclusion and hence the impugned order is liable to be set aside.
25. In the result, Crl.M.C.No.7238/2015 to quash the Crl.M.C.No.7238/2015 & others 17 entire proceedings is not sustainable and is liable to be dismissed.
26. Crl.M.C.No.1941/2016 is allowed. Order in CMP No.589/2016 is set aside and allowed. Consequently, CMP No.312/2016 is dismissed. Bail granted is rejected and bail bond is cancelled.
In the light of the above, Crl.M.C. 596/2016 is disposed of.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.
Crl.M.C.No.7238/2015 & others 18