Kerala High Court
Bijumon @ Navas vs State Of Kerala on 29 August, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941
Bail Appl.No.5984 OF 2019
CRIME NO.979/2014 OF ADOOR POLICE STATION, PATHANAMTHITTA
PETITIONER/3RD ACCUSED:
BIJUMON @ NAVAS,
AGED 48 YEARS
S/O.ABDUL KHADER,SEEMARAKKARATHUPARAMBU VEEDU,
NOCHIMA KOMBARA, NAD.P.O, CHUNDY VILLAGE,
ALUVA TALUK, ERNAKULAM DISTRICT FROM (19/1788),
NALUKULATHINKAL HOUSE, PALLURUTHI.P.O,
PALLURUTHY VILLAGE, ERNAKULAM DISTRICT.
BY ADV. SRI.P.SATHISAN
RESPONDENT:
STATE OF KERALA
THROUGH S.I.OF POLICE,
ADOOR POLICE STATION, PATHANAMTHITTA,
REP.BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM-682031.
SRI.AMJAD ALI, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
29.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A. No.5984 of 2019
2
ALEXANDER THOMAS, J.
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B.A. No.5984 of 2019
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Dated this the 29th day of August, 2019
ORDER
The petitioner herein has been arrayed as accused No.3 in the instant Crime No.979/2014 of Adoor Police Station, Pathanamthitta, which has been registered for offences punishable under Secs.370A, 417, 354, 376, 506(i) read with Sec.34 of the Indian Penal Code and Sec.10 read with Sec.24 (1) (b) of the Emigration Act, 1983, on the basis of the FI Statement given by the lady de facto complainant on 08.05.2014 in respect of the alleged incidents which had happened for the period from 10.10.2013 to 24.10.2013.
2. The prosecution case in short is that the lady de facto complainant aged 37 years is a married woman having children and her husband is working as a driver and that her family had approached A-1 & A-2 to secure an employment visa as driver for the lady's husband and that A-1 & A-2 assured them that they would get employment visas both for the lady as a maid servant and for her husband as a driver in Kuwait through the help of A-3, who is based in Kuwait and that thereafter, visa was B.A. No.5984 of 2019 3 arranged only for the lady and she had gone to Kuwait and there she was given accommodation by A-3 and thereafter, he had forcible sexual intercourse with her on quite a few occasions for the period from 10.10.2013 to 24.10.2013. That thereafter with great difficulty, she could come back to Kerala and out of fear and shame, she did not initially tell the incidents to her husband and later she had come forward to the police and has given the instant FI Statement on 08.05.2014 on the basis of which the present crime has been registered. A-1 & A-2 have been arrested, remanded and thereafter let out on regular bail. According to the prosecution, the petitioner (A-3) who was in Kuwait could not be apprehended and look out notice had to be issued and thereafter he has apprehended in the Cochin International Airport, Nedumbassery, Ernakulam on 06.08.2019 and has been under judicial custody since then.
3. Sri.P.Sathisan, learned counsel appearing for the petitioner would submit that the abovesaid allegations are false and baseless and that the petitioner has noting to do with the alleged recruitment of the lady de facto complainant said to have been made by A-1 & A-2 and that the petitioner is running a medical service agency in Kuwait and that his enquiries now has revealed that the visa was given to the lady by an entirely different employer, who is a citizen of Kuwait and that the domestic service B.A. No.5984 of 2019 4 contract as evident from Annexure-A1, which is authenticated by the Indian Embassy in Kuwait and it shows that the said visa has been issued to the lady de facto complainant and that going by the terms and conditions of the said visa, the maid servant has to reside in the accommodation given by the sponsorer and that the petitioner has no transaction whatsoever in the abovesaid recruitment and is not in any manner related to the lady's accommodation and employment in Kuwait. Further that Annexures-A2 & A3 are the receipts regarding the payments made by the sponsorer to the recruiting agency, who has issued Annexure-A1 and that the name of the lady de facto complainant is clearly shown in Annexures-A1, A2 & A3. Further the enquiries of the petitioner was revealed that on 09.11.2013 her service as a maid servant was given to another sponsorer for two days. That the petitioner has various business rivals and it is quite likely that it is such rivals, who have set up the lady de facto complainant to raise false allegations against the petitioner.
4. Further, the petitioner would also urge that he is suffering from serious cardiac and other related ailments as evident from Annexures-A6 & A7 medical reports and that he is surviving on the strength of multiple stents inducted in his heart and that once he had collapsed in the jail itself and needed urgent treatment as he was unable to thrive without expert B.A. No.5984 of 2019 5 medical assistance, etc.
5. Accordingly, it is urged by Sri.P.Sathisan, learned counsel appearing for the petitioner that as the petitioner has already suffered detention since 06.08.2019, his further detention is not necessary and that his passport has already been surrendered to the Investigating Officer and that during the abovesaid detention period of the petitioner, the Investigating Officer has not even requested at any time to get the custodial interrogation of the petitioner and that no effective purpose will be subserved by the continued detention of the petitioner and on the other hand he might be facing serious health hazard issues, if he has to undergo further jail detention. Accordingly, it is urged that the petitioner may be released on regular bail, subject to any stringent conditions.
6. The learned Public Prosecutor has opposed the plea for regular bail and had submitted that the allegations are serious and that there is likelihood of the petitioner influencing and intimidating the witnesses, more particularly, the lady de facto complainant and her family members, if he is let out on bail.
7. On being queried about Annexures-A1 series, A2, A3 & A4 documents, it appears that the prosecution agency has not so far investigated into those aspects. So also on being queried as to what are the B.A. No.5984 of 2019 6 materials so far obtained from accused Nos.1 & 2 as well as the other witnesses, so as to connect the petitioner with the abovesaid allegations, it appears that the prosecution agency has not been able to give any satisfactory answer to such queries, as the Investigating Officer has not fully briefed the prosecutor. Further the petitioner has also asserted that after the registration of the instant crime on 10.05.2014, the petitioner had actually visited Kerala every year at least once or twice and that his daughter's engagement and marriage was conducted in 2017 and no intimation whatsoever has been given to the petitioner by the police authorities concerned about even the pendency of the abovesaid crime and that if the petitioner has been so alerted, he could have worked out his remedies including the option of anticipatory bail and he would have voluntarily co-operated with the Investigating Officer. That the abovesaid approach of the police in not intimating about the crime to the petitioner at an earlier point of time and getting him apprehended in International Airport on the basis of look out circulars, etc., is not a fair and proper approach, it is urged.
8. Having heard both sides and after careful evaluation of the facts and circumstances of the case, more particularly, some of the factual aspects highlighted hereinabove and also the crucial aspect that the B.A. No.5984 of 2019 7 petitioner is facing serious health issues and also that after the interrogation and remand of the petitioner, the police has not so far sought any custodial interrogation of the petitioner, etc., this Court is persuaded to take the view that the further detention of petitioner may not really be necessary. However, the caution made by the prosecutor regarding the likelihood of the petitioner intimidating or influencing the witnesses, more particularly the lady de facto complainant and her family members, cannot be brushed aside by this Court. Necessary safeguards will be placed as conditions in the grant of bail and it is proposed to order that the petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the lady de facto complainant is residing subject to certain exceptions, which would be dealt with hereinafter. Further it is also proposed to order that the petitioner shall not leave the country, except with the prior permission of the jurisdictional court below concerned.
9. Accordingly, it is ordered in the interest of justice that the petitioner shall be released on bail on his executing bond for Rs.40,000/- (Rupees Forty Thousand only) and on his furnishing two solvent sureties for the like sum both to the satisfaction of the competent court below concerned. As the petitioner is stated to be suffering from serious cardiac and other related ailments, it may be difficult for the petitioner to B.A. No.5984 of 2019 8 frequently report before the Investigating Officer, who is the Station House Officer, Adoor, Pathanamthitta District. It is now pointed out that the petitioner is residing within the territorial limits of the Aluva Police Station. Accordingly, in the interest of justice, it is ordered that -
(i). The petitioner will report before the SHO, Aluva at any time between 9:00 a.m. and 1 p.m. on every 2 nd and 4th Saturdays for the next four months. Thereafter, the petitioner shall report before the said officer, if so required by the Investigating Officer in this crime. Further the petitioner will also report before the Investigating Officer as and when required by the said officer.
(ii). The petitioner shall fully co-operate with the investigation process and shall not intimidate or attempt to influence the defacto complainant/victim, witnesses; nor shall tamper with the evidence.
(iii). The petitioner shall not commit any similar offence while on bail.
(iv). The petitioner shall not visit or go anywhere near the residence of the lady de facto complainant.
(v) The petitioner shall not enter into or reside anywhere within the territorial limits of the police station, where the lady de facto complainant is residing, until the conclusion of the trial in this case, except for the limited purpose of reporting before the Police in connection with the abovesaid crime or any other crimes or for attending any courts in relation to this case of other cases or for contacting lawyer/Advocate concerned.
(vi) However, in case the petitioner has any genuine emergent personal need to visit the said area , then he may do so, but only with the prior permission of the Investigating Officer concerned.
(vii) The petitioner shall surrender his passport before the jurisdictional Magistrate Court concerned immediately on his release and if he has already surrendered his passport to the Investigating Officer, then he will file an affidavit before that B.A. No.5984 of 2019 9 court about that aspect. The petitioner will file an affidavit before that court to undertake that he shall not leave the country, except with the prior permission of the jurisdictional Magistrate court concerned.
10. The Investigating Officer will depute a police constable, preferably a woman constable (not in uniform) to the residence of the lady de facto complainant for the next three months, to ascertain as to whether the petitioner or the men acting for him have in any manner influenced or threatened the lady de facto complainant and her family members and if anything adverse, if so brought out against the petitioner, then the Investigating Officer will immediately deal with the matter, in accordance with law.
11. In case of violation of any of the above conditions, the jurisdictional Court concerned will stand hereby empowered to consider the application for cancellation of bail, if required, and pass appropriate orders in accordance with the law.
With these observations and directions, the above Bail Application will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd/29.08.19