BIJU KARNAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 18TH DAY OF DECEMBER 2019 / 27TH AGRAHAYANA, 1941 Crl.MC.No.8348 OF 2019(C)** **CRIME NO.1201/2019 OF NEDUMBASSERY POLICE STATION, Ernakulam** ## **PETITIONER/ACCUSED:** **BIJU KARNAN, AGED 42 YEARS S/O K.K. KARNAN, KURUVAMPADATH HOUSE, OKKAL, ERNAKULAM DISTRICT,PIN-683 550.** **BY ADVS. SRI.NOUSHAD THOTTATHIL SRI.NOORJI NOUSHAD SRI.P.VIJAYA BHANU (SR.)** ## **RESPONDENTS/STATE/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 VICTIM** **3 INSPECTOR OF POLICE, NEDUMBASSERY AIRPORT POLICE STATION, NEDUMBASSERY P.O.ERNAKULAM-683 585. 4 INSPECTOR OF POLICE , PERUMBAVOOR POLICE STATION, PERUMBAVOOR P.O.ERNAKULAM-683 572. R1, R3-4 BY SRI.S. SAJU BY PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.8348/2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C.No.8348 of 2019 ---------------------------------------------Dated this the 18[th] day of December, 2019 ## **ORDER** The case projected in this Criminal Miscellaneous Petition is as follows:The petitioner is actually a victim in a Honey trap planned and managed by the de facto complainant and her henchmen on 09.05.2019, who is now facing false allegation of rape registered as Crime No.1201/2019 of Nedumbassery Airport Police Station against him under Sections 376 (2)(n) of IPC and 66E of IT Act. The petitioner is a well-known business man and Vice Chairman of K.K.R Group of Companies makers of 'NIRAPARA' a well-known brand of Rice and various other Foods Products. The 2[nd] respondent de facto complainant befriended the petitioner through social media in the end of 2018 who met the de facto complainant on 09.05.2019 in a Hotel Room at Nedumbassery and spent 45 minutes with her as requested by her without indulging in any physical interaction. After two weeks she sent a message to his mobile through Face Book Messenger stating that she had video graphed their meeting held on 09.05.2019 and demanded huge amount and threatened that if he did not pay the amount, the video shot by her would be propagated through social media so as to tarnish his reputation and image in the society. Considering the criminal background of the de facto complainant, who is involved in more than half a Crl.M.C.No.8348/2019 3 dozen criminal cases including the cases registered under Immoral Traffic Prevention Act and Abkari Act, the petitioner agreed to pay a small amount for getting back the video. As and when the petitioner paid amount the de facto complainant demanded more and more amount. By this way, the de facto complainant and her henchmen extorted Rs.46,40,000/- (Rupees Forty Six Lakhs and Forty thousand rupees) from the petitioner. Due to continuous and unbearable threat and harassment the petitioner lodged a complaint against the de facto complainant. Following the complaint of the petitioner, a crime was registered against the de facto complainant as Crime No.2002/2019 of Perumbavoor Police Station under Sections 384, 388 r/w.34 of the Indian Penal Code. During the course of investigation of the said crime the Perumbavoor Police busted an extortion racket and immoral traffic gang headed by the de facto complainant who blackmailed the petitioner. Accordingly, the de facto complainant and two o ther accused were arrested. The investigation of the aforesaid case is almost complete and it is revealed from the investigation that though the de facto complainant claimed to have been pregnant from the petitioner on account of sexual intercourse on 09.05.2019, it is not all correct. The mobile conversation and messenger chatting of the de facto complainant with the petitioner through her mobile phone clearly reject and overrule the veracity of the allegation contained in the accusation levelled against the petitioner by the de facto complainant. The medical evidence collected both by the Perumbavoor Police in connection with Crime No.2002/2019 and Crl.M.C.No.8348/2019 4 Nedumbassery Airport Police in the accusation of rape levelled by the de facto complainant and it is a clear abuse of process of the court. The petitioner has not committed any offence as alleged by the de facto complainant. Though the de facto complainant was arrested in connection with Crime No.2002/2019 of Perumbavoor Police Station and produced before J.F.C.M. Court, Perumbavooor she had not raised any allegation of rape against the petitioner at an earlier point of time. When the de facto complainant was released on bail in Crime No.2002/2019 of Perumbavoor Police Station she preferred a complaint to the Nedumbassery Airport Police Station alleging the offence of rape against the petitioner. Accordingly, the Crime No.1201/2019 registered against the petitioner before the Nedumbassery Police Station under Section 376(2)(n) of IPC and Sec. 66E of IT Act. 2. It is contended by the petitioner that the aforesaid impugned Annxure-A12 Crime No.1201/2019 is registered against the petitioner upon a false and frivolous complaint of the de facto complainant, without any evidence or materials to fasten liability against the petitioner under Section 376 (2)(n) of IPC and Sec.66E of IT Act. The evidence collected both by the Perumbavoor Police and Nedumbassery Airport Police clearly reveal that the allegation of the de facto complainant raised against the petitioner is absolutely false. Even if the F.I.R and materials collected by the Police are taken as it is even then the same are not sufficient to hold that the petitioner committed any offence punishable under Section 376(2)(n) of IPC and Sec.66E of IT Act. Hence the continuance of Crl.M.C.No.8348/2019 5 impugned F.I.R is nothing but the clear abuse of process of Court. It is in the light of these averments and contentions, the petitioner has filed the instant Criminal Miscellaneous Case with the following prayer:- “(i) Quash Annexure A12 F.I.R and all further proceedings in pursuant to Crime No.1201/2019 of Nedumbassery Airport Police Station on the file of the Hon'ble Judicial First Class Magistrate's Court, Angamaly.” 3. Heard Sri. P. Vijaya Bhanu, learned Senior Counsel instructed by Smt. Noorji Noushad, learned counsel appearing for the petitioner/accused and Sri. S. Saju, learned Public Prosecutor appearing for official respondents 1, 3 and 4. In the nature of the orders proposed to be passed in this petition, notice to contesting respondent No.2 will stand dispensed with. 4. When the above matter was taken up for consideration on 26.11.2019, this Court had requested the learned Public Prosecutor appearing for the official respondents to get instructions in the matter and had also requested to get instructions from the District Police Chief (Rural), Ernakulam as well as the Investigating Officer concerned as to whether the impugned Annexure-A12 Crime No.1201/2019 of Nedumbassery Airport Police Station could be entrusted with the superior officer of the rank of Deputy Superintendent of Police, who is already investigating into the matters in Annexure-A6 Crime No.2002/2019 of Perumbavoor Police Station as it appeared that there may be interrelated factual issues in both these cases. Now Sri. S. Saju, learned Public Prosecutor appearing for the official respondents would submit on the basis of the instructions of the Crl.M.C.No.8348/2019 6 District Police Chief as well as the competent Investigating Officer concerned and also on the basis of the pleadings contained in paragraph No.3 of statement dated 6.12.2019 filed by the competent police official concerned in this case that the District Police Chief (Rural), Ernakulam has given his consideration to the above said aspects and has already ordered that the investigation in respect of the instant impugned Annexure-A12 Crime No.1201/2019 of Nedumbassery Airport Police Station has already been entrusted to the superior officer of the rank of the Deputy Superintendent of Police, who is the investigating officer in Annexure-A6 Crime No.2002/2019 of Perumbavoor Police Station. 5. The aforementioned Deputy Superintendent of Police, Perumbavoor, who is now the investigating officer in the instant crime as well as in the other case has now filed a detailed statement dated 6.12.2019 through the learned Public Prosecutor and paragraphs 2 to 11 of the said statement read as follows: “ _2. It is also pointed out at this juncture that the second respondent is the complainant and victim of an offence punishable under section 376 (2) (n) of the Indian Penal Code. Hence her name ought not have been disclosed in the cause title of the above Crl. MC which violates the privacy of the victim. The same is also a straight violation of the Official Circular No. 2/19 of this Honourable Court dated 30.09.2019._ _3. This Honourable Court vide order dated 26.11.2019 in Crl.MC 8348/19 has passed an order as to whether the investigation of the Crime No. 2002/2019 of Perumbavoor Police Station (FIR produced as Annexure A6) and that of Annexure A12 Crime No. 1201/2019 of Nedumbassery Police Station can be entrusted to the very same officer preferably an officer not below the rank of Inspector of Police or Deputy Superintendent of Police. Consequent to the said order, the District Police Chief, Ernakulam Rural has entrusted the investigation of the two crimes to the undersigned Deputy Superintendent of Police, Perumbavoor vide order dated 30.11.2019._ _4. The facts of crime No. 1201/19 of Nedumbassery Police Station as disclosed from the statement given by the second respondent is that the defacto complainant and the petitioner were friends and on 9.5.2019 the petitioner herein asked the defacto complainant to book a room at Saj Earth Resort at Nedumbassery to meet him. The defacto complainant booked the room online as demanded with the help of her friend Shanu and the defacto_ Crl.M.C.No.8348/2019 7 _complainant along with Shanu reached the resort and informed the matter to the petitioner. After sometime the petitioner arrived and made some friendly talks and later the petitioner herein made sexual intercourse with the defacto complainant two times by inducing her to marry and the petitioner herein also recorded those visuals in the mobile phone and left the room after mid day._ _5. It is also the allegation of the defacto complainant that similar sexual intercourse were done by the petitioner on earlier occasions also. According to the defacto complainant, she was five months pregnant and it was the petitioner herein who had impregnated her. Based on the statement of the defacto complainant the above said crime was registered alleging offences punishable under section 376 (2) (n) and 66 (E) of the Information Technology Act at Nedumbassery Police Station on 14.11.2019. During the course of investigation it is revealed that the defacto complainant and the petitioner herein had made friendship through social media. On 9.5.2019 at 11.51 AM the defacto complainant had booked a room at Saj Earth Nedumbassery though online and she received the key of the room No. 110 at 13.06 hrs, on 09.05.2019 and vacated the room at 20.40 hrs on the same day. It is also revealed in investigation that the petitioner herein and the defacto complainant had spend some time in the room and the petitioner left the place at about 4.00 PM. It is revealed from the medical records that the defacto complainant was 12 weeks and one day pregnant as on 13.9.2019 and her Last Menstrual Period (LMP) was on 22.07.2019. A statement of the defacto complainant was recorded under section 164 Cr.PC. The investigation in this case is in a preliminary stage. In both statement the 2[nd] respondent alleges that the petitioner is responsible for her pregnancy._ _6. It is submitted that a case in Crime No. 2002/2019 under sections 384, 388 of Indian Penal Code was registered at Perumbavoor Police Station against the 2[nd] respondent on 11.10.2019 based on petition submitted by the petitioner herein before the District Police Chief, Ernakulam Rural. The petitioner stated in the petition that he befriended with the 2[nd] respondent before one year through the social media ‘Facebook’ and she insisted him to see and several times invited him to her flat at Aluva for discussing business matters but the petitioner refused to do so. On 09.05.2019, the petitioner reached at Saj Earth Resort, Nedumbassery to meet her as invited by her and they met in a room and made friendly talk with her. She approached him for sexual intercourse but he refused and went back. Thereafter she threatened the petitioner herein that she would implicate him in a rape case if he did not give the money she asked. She extorted money from the petitioner on threat on several occasions through online banking. Thus the petitioner herein gave a total amount of Rs.46,40,000/- (Forty Six Lakhs and Forty Thousand Rupees) to the second respondent. The second respondent continued the threat and demanded more money from the petitioner hence the petitioner lodged a complaint before the District Police Chief, Ernakulam Rural. The statement of the petitioner was taken on 12.10.2019._ _7. It is submitted that during the course of investigation of Perumbavoor Police Station Crime 2002/2019, it is revealed that more accused persons A2-Shanu @ Shahin (a friend of 2[nd] respondent), A3-Ajeer Hussain (said to be the husband of 2[nd] respondent) and A4-Mansoor Ali were involved in the case. A1/2[nd] respondent along with A2-Shanu took the room at Saj Earth Resort on 09.05.2019 and A2-Shanu took the photos of the_ Crl.M.C.No.8348/2019 8 _petitioner herein while the petitioner get down from his Car in front of Saj Earth Resort on 09.05.2019. The other accused persons threatened the petitioner herein to give the amount and other properties as demanded by A1. The threatening text messages and voice messages sent by the accused persons to the petitioner herein were seized and produced before the Court. A1, A2 and A4 were arrested and was later enlarged on bail. A3-Ajeer Hussain is absconding. The investigation of the case is being continued._ _8. As stated above that second respondent (A1) was arrested in Perumbavoor Police Station Crime No. 2002/2019 on 15.10.2019 and produced before the court and the court remanded to judicial custody. At that time she did not reveal or depose the offence of rape committed upon her by the petitioner herein either before the investigating agency nor before the learned Magistrate. She was enlarged on bail on 24.10.2019. Investigating agency have seized the bank transactions details of the bank account of the 2[nd] respondent and the petitioner herein which revealed that an amount of Rs.46,40,000/- were transferred from the bank account of the petitioner herein to the bank accounts of the 2[nd] respondent on several dates during the month of May and July 2019. Threatening text messages and voice messages sent to the petitioner were also seized by the 3[rd] respondent._ _9. It is humbly submitted that the investigation of Nedumbassery Police Station Crime 1201/2019 is in preliminary stage. The incident alleged by the 2[nd] respondent is interconnected with the facts of Perumbavoor Police Station Crime No. 2002/2019. Though the investigations so far conducted in these cases it is revealed that the petitioner had transferred an amount of Rs. 46,40,000/- to the 2[nd] respondent and also revealed from the medical records and the statements of the doctors who treated the 2[nd] respondent that she got pregnant only after 22.07.2019. Hence the above two cases have to be investigated in detail to unearth the true facts._ _10. It is also submitted that on enquiry Dr.K.R.Radha, Professor and with Head Of Department, Department of Obstetrics and Gynecology, Government Medical College, Kalamassery, the doctor opined that even though DNA testing could be conducted during the pregnancy period it may be fatal to the foetus hence it is advisable to conduct DNA testing after the birth of the child to ascertain the paternity issue._ _11. In the above circumstances, more time is required to proceed with the investigation and arrive at a logical conclusion. The prayer to quash Annexure A12 FIR may be rejected since the investigation is in the preliminary stage and the offence alleged is under 376 (2 (n) of Indian Penal Code.”_ When the matter has been taken up for consideration today, Sri. S. Saju, the learned Public Prosecutor appearing for the official respondents would submit that an additional statement dated 16.12.2019 is also being filed by the Deputy Crl.M.C.No.8348/2019 9 Superintendent of Police concerned as a 'bench mark' in this case today. A copy of the said additional statement dated 16.12.2019 has been served to the learned counsel appearing for the petitioner in this case and a copy of the same has also been made available by the learned Public Prosecutor for the perusal of this Court. The said additional statement contains only two paragraphs and paragraphs 1 and 2 of the said additional statement dated 16.12.2019 read as follows: _“1. It is submitted that a case in Crime No. 2002/19 punishable under sections 384, 388 of Indian Penal Code was registered at Perumbavoor Police Station against the second respondent on 11.10.2019 based on the petition submitted by the petitioner herein before the District Police Chief, Ernakulam Rural. During the course of the investigation of the case, it is revealed that three more accused persons were involved in the case and the accused persons had extorted an amount of Rs. 46,40,000/- from the petitioner herein. The second respondent in this Crl. M.C is the first accused in the above crime and she was arrested on 15.10.2019 and produced before the court and the court remanded to judicial custody. Later she was enlarged on bail on 24.10.2019. A2-Shanu and A4 Mansoor Ali were arrested in the above crime. A3-Ajeer Hussain (said to be the husband of second respondent) is absconding._ _2. It is submitted that from the investigation conducted so far in both crimes, it is revealed that the complaint preferred by the lady victim (second respondent) in Crime No. 1201/19 of Nedumbassery Police Station for the offence under section 376(2)(n) of Indian Penal Code and Section 66(E) of Information Technology Act is false and it is filed as an after thought to wreck vengeance againt the petitioner herein on account of the crime registered against her as Crime No. 2002/19 of Perumbavoor Police Station punishable under section 384, 388 of Indian Penal Code upon the complaint of the petitioner herein. The following facts revealed from the investigation, it is clear that allegation of the victim (second respondent) that the petitioner herein committed rape upon her on 09.05.2019 and videographed the same by the petitioner herein is baseless without any evidence._ - _“ i. Though the victim (second respondent) alleged that she was raped on 09.05.2019 by the petitioner herein offering to marry her, she didn’t make any complaint till 07.11.2019._ _ii. The text messages and voice clips sent by the lady victim to the petitioner herein didn’t say anything about alleged sexual assault by the petitioner offering to marry her. The entire conversation between the lady victim with the petitioner clearly shows that it is a case of extortion of huge amount by the lady victim along with other three accused from the petitioner_ Crl.M.C.No.8348/2019 10 _threatening to tarnish his image, reputation and also falsely implicate him in a rape case._ _iii. Though the lady victim alleged that the petitioner recorded the visuals of sexual intercourse with her in the mobile phone and sent to her, she didn’t produce anything to prove the same. Moreover, the lady victim had sent a text message to the petitioner claiming that she herself videographed the meeting with the petitioner on 09.05.2019. During the course investigation of both crimes, no evidences were obtained to substantiate that the petitioner recorded the visuals of sexual intercourse with the lady victim using his mobile phone to rope into the petitioner for the offence under section 66(E) of Information Technology Act, 2000._ _iv. Even though the lady victim claimed that she became pregnant from the petitioner due to the sexual intercourse with him on 09.05.2019, the medical records and the statement of the doctor who examined her, it is clear that the lady victim got pregnant only after 22.07.2019 as per her Last Menstrual Period (LMP). If the petitioner made any sexual intercourse with the lady victim as alleged by her on 09.05.2019 and got pregnant from that, her Last Menstraul Period (LMP) should not be on 22.07.2019._ _v. The lady victim was arrested in Perumbavoor Police Station Crime No. 2002/2019 on 15.10.2019 and produced before the court and the court remanded to judicial custody. At that time, she did not reveal or depose the offence of rape committed upon her by the petitioner herein either before the Police or before the Magistrate. The evidence so far collected during the course of both crimes, it is revealed that the lady victim along with three other accused extorted Rs. 46,40,000/- from the petitioner by threatening him to tarnish his image, reputation and also falsely implicate him in a rape case. During the course of investigation conducted so far, no evidences could be obatined to substantiate the allegation of the lady victim that the petitioner raped her on 09.05.2019 inducing her to marry and she got pregnant due the said sexual intercourse with the petitioner on 09.05.2019. The lady victim has involved in several criminal cases including Immoral Traffic Prevention Act, Abkari Act, etc._ _vi. A complaint preferred by the lady victim (second respondent) before the Inspector General of Police, Thrissur was collected as part of the investigation of the Case in Crime No. 1201/19 of Nedumbassery Police Station, it reveals that the lady victim is married and having the habit of preferring complaints with the similar kind of allegations raised against the petitioner herein.”_ 6. After hearing both sides and after anxious consideration of submission on both sides, this Court is of the considered opinion that the investigating agency cannot be blamed as having proceeded in the wrong direction etc. or has acted in any manner unfairly so far and on the other hand, Crl.M.C.No.8348/2019 11 this Court would say that the investigation has proceeded on the right and proper lines and that the investigating agency has been discharging the duties and responsibilities in a fair and lawful manner. The task of investigation of cognizable offences is assigned exclusively in the domain of Police. When the investigating agency is proceeding in the right and proper lines and no prima facie grounds are disclosed so as to warrant the interdiction by exercise of the extraordinary inherent discretionary powers conferred under Section 482 of Cr.P.C., it may not be right and proper for this Court to keep a petition as in the instant case pending that may amount to atleast indirectly placing unnecessary fetters on the freedom, independence and autonomy of the police investigation agency concerned. Therefore, this Court would only direct that the Investigating Agency concerned should make an exhaustive and intense probe into all aspects and dimensions of both the above said crimes and then may take steps to complete and conclude the investigation process in its entirety without much delay, so that the final reports in each of these crimes could be filed before the competent criminal court concerned without much delay and in accordance with law. On being queried as to rock time frame that may be required by the investigating agency for duly completing the investigation in its entirety, Sri. S.Saju, learned Public Prosecutor appearing for the official respondents would submit on the basis of instructions that at least time by 3-4 months may be required in that regard. 7. Having regard to the various nuances and dimensions of these two Crl.M.C.No.8348/2019 12 cases, this Court would only request the agency to take all expeditious and sincere steps to ensure that the investigation in both these two cases are completed in its entirety in a professional and fair manner and within a reasonable time limit as may be appropriately fixed by the Investigating Officer concerned and preferably within the above said time limit of 3 -4 months as suggested by the investigating agency and in accordance with the lawful procedure in that regard. Needless to say that this Court has not entered into even one square inch of the controversy in these cases and after the submission of the final report in these cases, in case, the petitioner has any legally justiciable grievances thereto, it is for him to work out hiw remedies in the manner known to law. With these observations and directions and with the said liberty, the above Crl.M.C. will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE.** acd Crl.M.C.No.8348/2019 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE PRINTED FORMAT OF MOBILE CONVERSATION/CHATTING OF THE 2ND RESPONDENT WITH THE PETITIONER** - **ANNEXURE A2 A TRUE COPY OF THE MESSAGES SENT BY THE 2ND RESPONDENT TO THE PETITIONER DEMANDING MONEY CAR, GOLD AND FLAT.** - **ANNEXURE A3 A TRUE COPY OF THE THREATENING MESSAGES SENT BY THE 2ND RESPONDENT TO THE PETITIONER THROUGH MOBILE PHONE** - **ANNEXURE A4 TRUE COPY OF THE STATEMENT OF ACCOUNT ISSUED FROM AXIS BANK SHOWING THE PAYMENTS** - **ANNEXURE A5 A TRUE COPY OF THE COMPLAINT LODGED BY THE PETITIONER BEFORE THE DISTRICT POLICE CHIEF, ERNAKULAM RURAL** - **ANNEXURE A6 A TRUE COPY OF THE F.I.R.REGISTERED IN CRIME NO 2002/2019 OF PERUMBAVOOR POLICE STATION** - **ANNEXURE A7 A TRUE COPY OF NEWS REPORTS APPEARED IN VARIOUS MALAYALAM DAILIES WITH RESPECT TO THE ARREST OF ACCUSED.** - **ANNEXURE A8 A TRUE COPY OF THE JUDGMENT DATED 29.10.2013 PASSED IN C.C NO 388/10 OF J.F.C.M 11, ALUVA** - **ANNEXURE A9 A TRUE COPY OF THE REMAND REPORT FILED BY THE 4TH RESPONDENT BEFORE THE J.F.C.M I, PERUMBAVOOR** - **ANNEXURE A10 A TRUE COPY OF THE BAIL APPLICATION MOVED BY THE 2ND RESPONDENT BEFORE THE J.F.C.M COURT PERUMBAVOOR AS C.M.P NO 3238/19 IN CRIME NO 2002/2019 OF PERUMBAVOOR POLICE STATION** |Crl.M.C.No.8348/2019|14| |---|---| |**ANNEXURE A11**|**A TRUE COPY OF THE COMPLAINT PREPARED BY**| ||**THE 2ND RESPONDENT BEFORE THE NEDUMBASSERY**| ||**POLICE STATION**| |**ANNEXURE A12**|**A TRUE COPY OF THE F.I.R FILED AGAINST THE**| ||**PETITIONER AS CRIME NO 1201/2019 OF**| ||**NEDUMBASSERY AIRPORT POLICE STATION**| ||True Copy| ||P.S to Judge.|