Mohammed Haneefa v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **FRIDAY, THE 15TH DAY OF JUNE 2012/25TH JYAISHTA 1934** ## **Bail Appl..No. 3869 of 2012 ()** **-----------------------------CRIME NO.549/2011 OF VARAPUZHA POLICE STATION, ERNAKULAM DISTRICT. ..................** **PETITIONER:** **-------------------** **MOHAMMED HANEEFA, AGED 33 YEARS, S/O.LATE K.M. MOIDU, RESIDING AT 'RAHATH,, KOTTIKULAM, P.O. BEKAL, KASARAGOD DISTRICT.** **BY SRI.S.SREEKUMAR, SENIOR ADVOCATE. ADVS. SRI.P.MARTIN JOSE, SRI.M.A.MOHAMMED SIRAJ, SRI.P.PRIJITH.** **RESPONDENT:** **----------------------** **THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR MR.C. RASHEED.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15-06-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **N.K.BALAKRISHNAN, J.** ## **----------------------------------------------------** ## **B.A.No.3869 of 2012** ## **---------------------------------------------------Dated this the 15[th] day of June, 2012** ## **Order** The petitioner is the 52[nd] accused in Crime No.549 of 2011 of Varapuzha Police Station has filed this petition for anticipatory bail. 2. Apprehending arrest, the petitioner had earlier filed B.A.No.9108 of 2011 under Section 438 of the Code of Criminal Procedure. By order dated 22.11.2011 this court dismissed the petition holding that the facts reveal that the petitioner is one of the many accused and with due regard to the nature of the offence, it is not a fit case to invoke the jurisdiction under Section 438 of the Code of Criminal Procedure. The petitioner was directed to surrender before the Investigating Officer with a direction that after interrogation, he shall be produced before the Magistrate so as to enable him to apply for regular bail. 3. A second application was filed by the petitioner as B.A.No.10844 of 2011. That petition was considered again by another Bench of this court adverting to all the contentions raised by the petitioner, that petition was also dismissed by this BA 3869/12 2 court as per the order dated 24.1.2012. 4. It is vehemently argued by the learned Senior Counsel appearing for the petitioner that certain aspects were not available to be brought to the notice of the court at the time when second bail application came up for consideration. That submission is strongly resisted by the learned Public Prosecutor. The above argument of the learned Senior Counsel cannot be correct in view of the fact that all these matters were actually considered by this court in the earlier application, B.A.NO.10844/11, referred to above. Paragraph 3 of that order reads: “Learned Senior counsel vehemently argued that some facts were not within the knowledge of the petitioner when the earlier application for anticipatory bail was filed and heard by this court and on the additional circumstances, petitioner is to be granted anticipatory bail. Learned Senior Counsel submitted that Annexure A, the statement of the victim recorded under Section 164 of the Code of Criminal Procedure does not show any statement that the victim was taken to Kanhangad or any rape was committed on her at Kanhangad and the Car of the petitioner was seized by the police in this crime and it was not BA 3869/12 3 produced before any court and therefore the wife of the petitioner filed a petition under Section 457 of Code of Criminal Procedure before JFCM, North Paravur and it was dismissed by order dated 22.12.2011 and in that order, it was first known to the petitioner that he is alleged to be an accused in the case on the allegation that he committed rape on the victim at Kanhangad. Learned Senior Counsel argued that the statement recorded under Section 164 of the Code of Criminal Procedure does not disclose the ingredients of the offence under Section 376 of IPC and in the nature of the allegation made, after 35[th] accused was arrested and Annexure B remand report was submitted before the Magistrate, it is clear that petitioner was falsely implicated in the case. Learned Senior Counsel also submitted that the car is being used by the Investigating Agency without producing it before the court. Learned Senior Counsel finally argued that the prosecution did not disclose when exactly the offence was allegedly committed by the petitioner. The copy of the statement of the victim furnished by the Public Prosecutor does not reveal the exact date on which the offence was committed, though it is stated as in the end of July, 2011.” Again the very same argument has been made by the learned BA 3869/12 4 Senior Counsel as if this court is sitting in appeal against the earlier order passed by this court in B.A.No.10844/11. 5. The main contention that has been urged by the learned Senior Counsel is that in the statement given by the victim girl under Section 164 Cr.P.C. the name of this petitioner was not specifically mentioned and so the whole prosecution case so far as the petitioner is concerned should be treated as a frivolous one. The materials collected by the investigation agency would show that the victim girl was brought from Bangalore to Kasaragode in the Scorpio car of A1 and that at the time when the car started from Bangalore it was driven by Anilkumar and thereafter it was driven by one Sathar. While the girl was in the car mentioned above, Sathar told that the victim girl was being taken to Kanhangad to give the girl to Mohammed Haneefa who is the petitioner herein. It was further stated that when the car reached Thalappady (which is the State border of Kerala and Karnataka), Haneefa(petitioner) and another person entered the car. It was stated that those persons reached there in another white car driven by the petitioner herein. The statement given by the victim girl would show that this petitioner and the other BA 3869/12 5 person who also boarded car, had raped her. The statement would show that the victim girl was taken to a hotel at Kanhangad from where she was raped by the petitioner herein and thereafter by other man whose description was given in the statement so given also raped her. Therefore, the argument to the contrary advanced on behalf of the petitioner is bereft of any merit. 6. The learned Public Prosecutor submits that most of the other accused persons were arrested and they were under custody for more than 60 days. In spite of the fact that the first bail application was dismissed by this court on 22.11.2011, the police took no action to arrest the accused. Because of that, the petitioner moved this court again. That petition was dismissed on 24.1.2012 but still the police has not taken any action to arrest the accused, the learned Prosecutor further pointed out. The learned Public Prosecutor submits that the only “change of circumstance” that can be stated is that in spite of his applications for anticipatory bail were dismissed twice, still the petitioner could evade being arrested, evidently because he is so powerful and influential. BA 3869/12 6 7. The learned Senior Counsel has relied upon the decisions of the Supreme Court in **Satish v. State of Haryana** [ (2012) 4 SCC 510] and also in **Jaiprakash Singh v. State of Bihar** [ (2012) 4 SCC 379] in support of his submission that frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail. Guidelines were issued by the Honourable Supreme Court in **Siddharam Satlingappa Mhetre's** case [ (2011) 1 SCC 694] regarding grant of bail. The learned Public Prosecutor submits that so far as the case on hand is concerned, there is no frivolity in the prosecution case. A minor girl aged less than 16 years was procured by the first accused and she was raped several times by several accused persons taking her to several places. As pointed out above, the victim girl was taken in a particular car as described earlier. It was argued by the learned Senior Counsel that the aforesaid vehicle was garaged and was in the garage at that particular time. The learned Public Prosecutor submits that there could be no difficulty to get a certificate from the garage. That apart, since the offence of rape continued for several months and as it took place at different places and at BA 3869/12 7 different times, the victim girl may not be in a position to state the exact dates and times of the incidents. Therefore, the nonmention of the date on which she was raped by this petitioner also is not of much consequence, the learned Prosecutor rightly submits. It is a case where about 150 accused persons are nvolved. Most of the accused persons were arrested and they were, according to the learned Public Prosecutor, granted bail only after about 60 days. The contention that in the First Information Statement, her name and her father's name shown are also not correct was also projected. It was explained by her that she had to furnish incorrect name and address as she was threatened or persuaded to tell so, by accused No.1. Similar contentions were raised by the first accused in B.A.No.3320 of 2012 was considered by this court. The bail application of A1 was also dismissed by this court. As stated earlier, it is not known why the Investigating Officer has not taken care to arrest the accused so far and question him and to complete the investigation, so far as it relates to the petitioner herein. 8. I have carefully examined the entire available records and particularly the allegations levelled against the accused. The BA 3869/12 8 nature and gravity of the offence, possibility of the accused to flee from justice and the likelihood of his indulging in commission of similar offences as alleged by the prosecution are also taken note of. Further, the allegation that the accused will threaten or influence the witnesses and would tamper with the evidence and witnesses and would hamper with the smooth investigation has also been duly considered. Under these circumstances, I am not inclined to grant pre-arrest bail to the petitioner. This petition is hence dismissed. ## **N.K.BALAKRISHNAN, JUDGE.** srd BA 3869/12 9