Kerala High Court
Haneef vs State Of Kerala on 22 December, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9626 OF 2021
CRIME NO.509/202O OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONER/SOLE ACCUSED:
ASHU,AGED 23 YEARS
S/O. ZAHID MIYAN,
SAIJINI NANKAR, RAMPUR CITY, RAMPUR, UTTAR PRADESH
244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682 031.
2 XXX
XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.12.2021, ALONG WITH Bail Appl..9629/2021, 9628/2021 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.9626/2021 & con.cases 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9629 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM DISTRICT
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONERS/ACCUSED 1 & 2:
1 FARHAD KHAN,AGED 30 YEARS
S/O JAHID,SAIJINI NAGAR, RAMPUR CITY, RAMPUR, UTTAR
PRADESH-244901.
2 FAHEEM,AGED 23 YEARS
S/O NABI AHAMMED,
SAIJINI NAGAR, RAMPUR CITY,
RAMPUR DISTRICT, UTTAR PRADESH-244901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA-682031.
2 XXX
XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9628 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONER/ACCUSED:
HANEEF.,
AGED 29 YEARS
S/O. NABI AHAMMED, SAIJINI NANGAR, RAMPUR CITY,
RAMPUR DISTRICT, UTTAR PRADESH 244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682 031.
2 XXXX
XXXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9636 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONER/ACCUSED No.2:
SHAHID
AGED 25 YEARS
S/O SHERIEF AHAMMED,
HOUSE NO.14, HANUPURA I PS,
ASIM NAGAR, RAMPUR,
UTTAR PRADESH-244901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA.
2 XXX
XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9634 OF 2021
CRIME NO.509/2020 ELOOR POLICE STATION, ERNAKULAM DISTRICT
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONER/ACCUSED:
FARHAD KHAN @ BHARATH,
AGED 30 YEARS
S/O. JAHID, SAIJINI, NANGAR, RAMPUR CITY, RAMPUR,
UTTAR PRADESH 244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682 031.
2 XXXX
XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases 6
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9631 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDER IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONERS/ACCUSED 1 & 2:
1 FARHAD KHAN @ BHARATH
AGED 30 YEARS
S/O JAHID,
SAIJINI NAGAR, RAMPUR CITY,
RAMPUR, UTTAR PRADESH-244901.
2 FAHEEM
AGED 23 YEARS
S/O NABI AHAMMED,
SAIJINI NAGAR, RAMPUR CITY,
RAMPUR DISTRICT, UTTAR PRADESH-244901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA-682031.
2 XXX
XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9635 OF 2021
CRIME NO.509/2020 OF ELOOR POLICE STATION, ERNAKULAM
AGAINST THE ORDERT IN SC 683/2020 OF ADDITIONAL DISTRICT COURT
& SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN)
PETITIONER/ACCUSED 1 & 2:
1 ASHU.,
AGED 23 YEARS
S/O. ZAHID MIYAN, SAIJINI NANKAR, RAMPUR CITY
RAMPUR, UTTAR PRADESH 244 901.
2 FAEEM.,
AGED 23 YEARS
S/O. NABI AHAMMED, SAIJINI NANGAR, RAMPUR CITY,
RAMPUR DISTRICT, UTTAR PRADESH 244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682 031.
2 XXXX
XXXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases 8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 22ND DAY OF DECEMBER 2021 / 1ST POUSHA, 1943
BAIL APPL. NO. 9665 OF 2021
PETITIONER/SOLE ACCUSED:
FAEEM,
AGED 23 YEARS
S/O. NABI AHAMMED, SAJINI NANGAR, RAMPUR CITY,
RAMPUR DISTRICT, UTTAR PRADESH-244 901.
BY ADV MATHAI VARKEY MUTHIRENTHY
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, 682 031.
2 XXX
XXX
SRI. NOUSHAD K.A.(P.P.)
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
22.12.2021, ALONG WITH Bail Appl..9626/2021 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B.A.No.9626/2021 & con.cases 9
ORDER
[Bail Appl. Nos.9626/2021, 9629/2021, 9628/2021,
9636/2021, 9634/2021, 9631/2021, 9635/2021, 9665/2021]
The petitioners in these cases are the accused in Crime No.509/2020 of
Eloor Police Station, Ernakulam District. The petitioner (Ashu) in
B.A.No.9626/2021 is alleged to have committed offences under Sections 376
(3), 376(2)(n) of the Indian Penal Code and Section 4(2) r/w. Section 3,
Section 6 r/w. Section (l), (j)(ii) of the Protection of Children from Sexual
Offences Act, 2012. The petitioner (Haneef) in B.A.No.9628/2021 is alleged to
have committed offences under Sections 376 (2) (n), 376(3) of the Indian
Penal Code and Section 4(2) r/w. Section 3, 6 r/w. 5(l) of the Protection of
Children from Sexual Offences Act, 2012. The petitioners (Farhad Khan @
Bharath & Faeem) in B.A.No.9629/2021 are alleged to have committed
offences under Sections 366, 376 DA of the Indian Penal Code and Section
4(2) r/w. Section 3, Section 5(g), (j)(ii) r/w. Section 6 of the Protection of
Children from Sexual Offences Act, 2012. The petitioners (Farhad Khan, &
Faeem) in B.A.No.9631/2021 are alleged to have committed offences under
Sections 366, 366A & 376DA of the Indian Penal Code and Section 4(2) r/w.
Section 3, 5(g), (j) (ii) r/w. 6 of the Protection of Children from Sexual
Offences Act, 2012. The petitioner (Farhad Khan @ Bharath) in
B.A.No.9634/2021 is alleged to have committed offences under Sections 376
(2)(n) & 376(3) of the Indian Penal Code and Section 4(2) r/w. Section 3, 6
r/w. 5(l) of the Protection of Children from Sexual Offences Act, 2012. The
petitioners (Ashu & Faeem) in B.A.No.9635/2021 are alleged to have
committed offences under Sections 366 & 376 DA of the Indian Penal Code &
Section 4(2) r/w. Section 3, 6 r/w. Section 5(g), (j)(ii) of the Protection of
Children from Sexual Offences Act, 2012. The petitioner (Shahid) in
B.A.No.9636/2021 is alleged to have committed offences under Sections 366,
366A & 376DA of the Indian Penal Code and Section 4(2) r/w. Section 3, 5 (g),
(j) (ii) r/w. 6 of the Protection of Children from Sexual Offences Act, 2012.
The petitioner (Faeem) in B.A.No.9665/2021 is alleged to have committed
offences under Sections 376(3) & 376(2) (n) of the Indian Penal Code &
Section 4(2) r/w. Section 3, Section 6 r/w. (l) & (j)(ii) of the Protection of
Children from Sexual Offences Act, 2012.
2. The allegation against the petitioners in these cases, in short, is
that they were all living in a rented house opposite the house of the minor
victim girl, aged 14 years. Among the aforesaid accused, one 'Faeem' is alleged
to have enticed the minor victim girl pretending to be in love with her and is
alleged to have committed penetrative sexual assault on her several times.
Allegedly the other accused in the case had also assaulted the victim girl
several times both at their rented house at Edappally and in the house of the
victim and also in a Workshop at Kunnumpuram.
3. The learned counsel appearing for the petitioners in these cases
would submit that the petitioners were arrested on different dates and they
have all completed substantial periods in custody. It is submitted that, since
final reports have been filed against all the accused in these cases, further
detention of the petitioners is not necessary for the purpose of any
investigation. It is submitted that, going by the judgment of this Court in
Union of India v. K.A. Najeeb; 2021 KHC 6045, even in respect of
special Statutes where there is a bar on the ground of bail, the constitutional
Courts have the jurisdiction to grant bail. In particular, reference is made to
paragraph 16 of that judgment, which reads as follows:-
"16.This Court has clarified in numerous judgments that the liberty
guaranteed by Part III of the Constitution would cover within its
protective ambit not only due procedure and fairness but also
access to justice and a speedy trial. In Supreme Court Legal Aid
Committee Representing undertrial Prisoners v. Union of India
(1994 KHC 1078: (1994) 6 SCC 731: 1995 SCC (Cri) 39). P.15., it was
held that undertrials cannot indefinitely be detained pending trial.
Ideally, no person ought to suffer adverse consequences of his acts
unless the same is established before a neutral arbiter. However,
owing to the practicalities of real life where to secure an effective
trial and to ameliorate the risk to society in case a potential
criminal is left at large pending trial, Courts are tasked with
deciding whether an individual ought to be released pending trial
or not. Once it is obvious that a timely trial would not be possible
and the accused has suffered incarceration for a significant period
of time, Courts would ordinarily be obligated to enlarge them on
bail.
It is submitted that sufficient conditions may be put in place to ensure that
the accused are available to face the trial and to ensure that they do not
influence or intimidate any witness in the case. It is also submitted that even
though the petitioners are all permanent residents of the State of Uttar
Pradesh, they are all willing to provide local sureties for the purpose of
enlargement from bail. It is also submitted that the 2 nd accused was already
granted bail by this Court.
4. I have heard the learned Public Prosecutor and Mrs. Parvathy
Menon, the learned counsel, who has been appointed as support person of the
victim girl, by the Child Welfare Committee, Ernakulam District.
5. The learned Public Prosecutor submits that the crime alleged to
have been committed by the accused is extremely heinous. It is submitted that
a minor child, aged only 14 years, whose mother is no more and whose father
is working in Delhi, was subjected to brutal rape by several persons at the time
when she was staying with her grandparents. It is submitted that the
petitioners are residents of the State of Uttar Pradesh and the grant of bail at
this stage may not be conducive for conclusion of the trial as there is every
chance of the accused absconding. It is submitted that in the very judgment
relied on by the learned counsel for the petitioner, the Supreme Court has
recognised the right of the Court to take a judicious decision regarding grant
of bail even in cases where the trial is likely to take some time in order to
secure an effective trial and to ameliorate the risk to society in case a potential
criminal is left at large pending trial. It is submitted that it is only when the
Court is convinced that there would be inordinate delay in conclusion of trial,
would the Courts step in to grant bail notwithstanding the fact that the
accused are alleged to have committed serious offences as in this case.
6. Smt. Parvathy Menon, the learned counsel appearing as support
person of the victim girl would submit that her interactions with the victim
girl have established that at least in respect of one among the accused, the
victim girl had developed a sense of sympathy and a syndrome known as the
'stockholm syndrome'. The learned counsel submits that the relatives of the
4th accused had visited the house of the victim girl with a request to withdrew
from the prosecution. The learned counsel also points out that following filing
of split charge against the accused, the charges under Section 120B of the
Indian Penal Code, which is essential in the case has been dropped. The
statement filed by the support person for the victim girl elaborates the reasons
as to why this Court should not consider the grant of bail to the accused.
Though these reasons are telling, I do not intend to burden this judgment by
extracting the same except to state that the reasons are germane to my
decision to refuse bail in these cases.
7. Having regard to the totality of the facts and circumstances of the
case and the submissions of the learned counsel appearing in this matter and,
in particular, having regard to the contents of the statement filed by the
support person of the victim girl, I am of the view that the petitioners are not
entitled to bail. In the result, these bail applications are dismissed.
8. I notice from the facts of these cases that though the allegations
against all the accused are essentially similar in nature, the offences which
have been alleged against some do not incorporate all the offences which have
been alleged against some others. This added to the facts pointed out by the
learned counsel appearing as support person for the victim girl suggest to me
that I should request the learned Director General of Prosecution to bestow
his personal attention to the charges already filed in these cases to ensure that
there is no defect of any nature in the charges filed against the accused in
these cases. I, therefore, request to Sri. T.A. Shaji, Senior Advocate and
Director General of Prosecution to bestow his personal attention to the
charges filed against the accused in these cases to ensure that there is no
defect of any nature.
Registry shall communicate a copy of this order to the learned Director
General of Prosecution.
Sd/-
GOPINATH P.
JUDGE
acd
