Bail Applications in Crime No. 509/2020, Eloor Police Station, Ernakulam District, State of Kerala v. Ashu, Farhad Khan (alias Bharath), Haneef, Shahid, Faheem and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 22[ND] 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 22[ND] 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 22[ND] 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 22[ND] 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 22[ND] 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 22[ND] 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 22[ND] 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 22[ND] 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 B.A.No.9626/2021 & con.cases 10 (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 B.A.No.9626/2021 & con.cases 11 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 B.A.No.9626/2021 & con.cases 12 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 B.A.No.9626/2021 & con.cases 13 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 4[th] 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 B.A.No.9626/2021 & con.cases 14 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