MUHAMMED SALIH S/O.AMEER ALI v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 12TH AUGUST 2011 / 21ST SRAVANA 1933 Bail Appl..No. 6468 of 2011() ------------------------CRMP.2009/2011 of J.M.F.C. - I, PARAVUR Crime No.111/CR/HHWII/EKM/11 (North Paravoor Police Station Crime No.346 of 2011) .................... PETITIONER : ACCUSED: -------------------- MUHAMMED SALIH S/O.AMEER ALI, PLAMOOTIL HOUSE,PUTUPADY P.O, VELLOORKUNNAM, MUVATTUPUZHA, ERNAKULAM. BY ADV. SRI.M.K.DAMODARAN, SENIOR ADVOCATE SRI.BIJU MEENATTOOR SRI.GLEN ANTONY SMT.M.VANAJA SRI.P.SANJAY RESPONDENT: --------------- STATE OF KERALA, REP.BY DY.S.P.CBCID HHW-II,ERNAKULAM INVESTIGATING CRIME NO.346/2011,OF NORTH PARAVOOR POLICE STATION REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.MANU THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J. --------------------------------------------Bail Appln.No.6468 of 2011 ---------------------------------------------Dated this the 12[th] day of August, 2011** ## **ORDER** This is an application for bail filed under Section 439 of the Code of Criminal Procedure by accused No.43 in CBCID Crime No.111/CR/HHWII/EKM/11 (North Paravoor Police Station Crime No.346 of 2011). 2. The offences alleged against the accused are under Sections 366-A, 354, 372, 373, 376 (2) (g), 506 (i), 342 and 202 read with Section 34 of the Indian Penal Code and Section 23 of the Juvenile Justice (Care and Protection of Children) Act. 3. The Bail Application submitted by the petitioner earlier as Bail Appln.No.5360 of 2011 was dismissed by a detailed order dated 1[st] August, 2011. On 5[th] August, 2011 the petitioner filed the present Bail Application which came up for hearing today. 4. The gist of the prosecution case is the following: The victim, a girl aged below 16 years, was taken to several places within the State and in the neighbouring States under Bail Appln.No.6468/2011 : 2 : force and threat and she was compelled to have sexual intercourse with several persons against her will and without her consent for the period from 3-5-2010. The First Information Statement was given by the victim on 7-3-2011. The father of the victim is a real estate broker and a person who supplies junior artists to film makers. On 3-5-2010, the victim was taken by her father to a hotel at Panampilly Nagar, Ernakulam, stating that they had to meet ‘film people’. After leaving the victim in the room in the hotel, father of the victim left the place. The victim was raped by the man who was in the room. Thereafter, on that date and on the following days, she was taken to several places in and around Ernakulam city, Mysore, Ooty, Thiruvananthapuram, Kannur, Chalakkudy, Athirappilly, Munnar, Bangalore, Thrissur, Mapranam, Coimbatore etc. On 1-1-2011, the father of the victim took her to Coimbatore and entrusted her to a man and woman. They took the victim to a house where she was locked. She was subjected to forceful sex by twelve persons who visited the house. The victim escaped from that house and after reaching her native place, she disclosed the matters to her paternal uncle and other relatives. They advised the victim to inform the matter to the police. Bail Appln.No.6468/2011 : 3 : 5. The victim stated in the First Information Statement that her father used to entrust her with some brokers. The mother of the victim, though initially opposed the misdeeds of her husband, she was silenced by meting out cruelty to her by her husband. The father of the victim also threatened and terrorized the victim and her brother. On one occasion, the victim was taken by his father to Varapuzha bridge and he threatened that the victim would be thrown to the river. The father used to hang the brother of the victim upside down on the fan to pressurize the victim to go for sex work. The victim also stated in the First Information Statement that her father used to give her pills to prevent pregnancy. The victim had even to undergo treatment in two hospitals as a result of subjecting her to excessive sexual intercourse. The victim stated that her father used to receive money for presenting her to several persons. 6. The prosecution case as against accused No.43 is that he had sexual contact with the victim in a flat belonging to accused No.46 Jamaludeen. 7. The contention put forward by the learned Counsel for the petitioner in B.A.No.5360 of 2011 was dealt with in paragraph 15 of the order dated 1[st] August, 2011, which reads Bail Appln.No.6468/2011 : 4 : ## as follows:- “15. Sri.Sanjay, the learned counsel appearing for accused No.43 Muhammad Salih submitted that the victim stated in the second statement given to the Crime Branch that Muhammad Salih only touched the victim and caressed her when the girl was brought to the flat in the possession of accused No.46. The only allegation is that Muhammad Salih had oral sex with the woman who brought the victim to the flat of accused No.46, which is not an offence. Only in the first statement given by the victim, there is mention about the sexual intercourse by accused No.43. The counsel submitted that the first statement is a vague and general statement whereas the second statement is a clear and specific one. The counsel submitted that at best it could be said that an offence under Section 354 I.P.C. is prima facie made out against accused No.43, which is a bailable offence.” 8. The contention put forward by the petitioner in B.A.No.5360 of 2011 was not accepted and that Bail Application was dismissed by the order dated 1[st] August, 2011. 9. Shri.M.K.Damodharan, learned Senior counsel for the petitioner submitted that going by the remand report dated 29/06/2011, it can be seen that the petitioner has committed only an offence under Section 354 of the Indian Penal Code even going by the prosecution case. The remand Bail Appln.No.6468/2011 : 5 : report is also relied on to show that the detention of the petitioner on the basis of the remand report was illegal. It is submitted that in spite of the contents in the remand report dated 29/06/2011, the learned Magistrate, as per the order dated 30[th] June, 2011 refused bail to the petitioner after holding thus:- “5. On perusal of remand report would reveal that the involvement of A43 cannot said to be simplified as contented. His involvement can be viewed that it amount to an offence u/s.366A of IPC also. Eventhough no allegations were made against him for the offence u/s.376 of IPC, his culpable involvement in the crime of this nature do not justify me to release him on bail.” 10. The learned Senior Counsel submitted that whatever may be grave nature of the offence as regards other accused, the petitioner is concerned with only the allegations made against him. The allegations against him as revealed from the remand report would show that only a bailable offence is made out against him. Therefore the petitioner was entitled to bail as of right and no discretion was available to the court to deny bail to him. The Senior Counsel submitted that the initial detention being bad, the continued detention of the petitioner is also illegal. Sri.M.K.Damodharan, learned Bail Appln.No.6468/2011 : 6 : Senior Counsel referred to the decisions reported in **Mohammed Ankoos And others Vs. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad** (2010) 1 SCC 94, **Rasiklal Vs. Kishore s/o. Khanchand Wadhwani** (2009) 4 SCC 446 in support of the contention that in a bailable offence, no discretion is vested in the court to deny bail to the accused. The learned Senior Counsel submitted that at this stage, detailed investigation is not required and the fundamental freedom and liberty of the petitioner should be protected by the court. 11. The learned Public Prosecutor submitted that the remand report dated 29/06/2011, if taken as a whole, the detention of the petitioner was legal. The petitioner committed non bailable offence, which is a very serious offence. The learned Public Prosecutor invited my attention to the remand report as a whole. The learned Public Prosecutor submitted that in the first page of the remand report, it is stated that accused Nos.12, 42, 43 and 44 had sexually abused the girl. 12. The learned Public Prosecutor sought time to produce the subsequent remand reports to show that the Bail Appln.No.6468/2011 : 7 : contentions put forward by the petitioner are not correct. The learned Senior Counsel opposed the request for any adjournment and submitted that the Bail Application requires to be disposed of today itself. 13. The learned Public Prosecutor submitted that the Bail Application submitted by the petitioner along with other several applications were heard in detail for several hours. All the records were produced and a detailed order was passed on 01/08/2011. The present Bail Application was filed on 05/08/2011. The learned Public Prosecutor submitted that the Supreme Court deprecated the filing of successive Bail Applications in the absence of change of circumstances. The learned Public Prosecutor relied on **State of Maharashtra Vs. Captain Buddhikota Subha Rao** A.I.R 1989 SC 2292, **Kalyan Chandra Sarkar etc., Vs. Rajesh Ranjan alias Pappu Yadav and another** A.I.R 2005 SC 921 and A.I.R 2009 SC 2781. 14. In AIR 1989 SC 2292 the Supreme Court held thus:- “7. Liberty occupies a place of pride in our socio-political order. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian laws by the colonial rulers. Bail Appln.No.6468/2011 : 8 : That is why they provided in Article 21 of the Constitution that no person shall be deprived of his personal liberty except according the procedure established by law. It follows therefore that the personal liberty of an individual can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one such procedural law. That law permits curtailment of liberty of anti-social and anti-national elements. Article 22 casts certain obligations on the authorities in the event of arrest of an individual accused of the commission of a crime against society or the Nation. In cases of undertrials charged with the commission of an offence or offences the court is generally called upon to decide whether to release him on bail or to commit him to jail. This decision has to be made, mainly in non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc. In the present case the successive bail applications preferred by the respondent were rejected on merits having regard to the gravity of the offence alleged to have been committed. One such application No.36 of 1989 was rejected by Suresh, J. himself. Undeterred the respondent went on preferring successive applications for bail. All such pending bail applications were rejected by Bail Appln.No.6468/2011 : 9 : Puranik, J. by a common order on 6[th] June, 1989. Unfortunately, Puranik, J. was not aware of the pendency of yet another bail application No.995/89 otherwise he would have disposed it of by the very same common Order. Before the ink was dry on Puranik, J.'s order, it was upturned by the impugned order. It is not as if the court passing the impugned order was not aware of the decision of Puranik, J.; in fact there is a reference to the same in the impugned order. Could this be done in the absence of new facts and changed circumstances? What is important to realise is that in Criminal Application No.375 of 1989, the respondent had made an identical request as is obvious from one of the prayers (extracted earlier) made therein. Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And, when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Between the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days Bail Appln.No.6468/2011 : 10 : before, in the absence of any substantial change in the fact-situation. In such cases it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him. In such a situation the proper course, we think, is to direct that the matter be placed before the same learned judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be condusive to judicial discipline and would also save the Court's time as a judge familiar with the facts would be able to dispose of the subsequent application with despatch. It will also result in consistency. In this view that we take we are fortified by the observations of this Court in paragraph 5 of the judgment in Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) 2 SCC 684 : (AIR 1987 SC 1613. For the above reasons we are of the view that there was no justification for passing the impugned order in the absence of a substantial change in the fact-situation. That is what prompted Bail Appln.No.6468/2011 : 11 : Shetty, J. to describe the impugned order as 'a bit out of the ordinary'. Judicial restraint demands that we say no more.” 15. In A.I.R 2005 SC 921, the Supreme Court held ## thus:- “19. The principles of re judicata and such analogous principles although are not applicable in a criminal proceeding, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a co-ordinate bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same it would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.” 16. I have carefully gone through remand report dated 29/06/2011. Simply because a sentence occurs in the second statement given by the victim to the Crime Branch that the accused No.43 (petitioner) only caressed the victim, it does Bail Appln.No.6468/2011 : 12 : not mean that the prosecution case is that he has done only that. When the remand report is taken as a whole, I do not think an interpretation justifying such a conclusion is possible. Even when Bail Appln.No.5360 of 2011 was argued in detail, the point which is now raised based on the remand report dated 29/06/2011, was not put forward at all. Nor did the petitioner bring to the notice of the court the order dated 30[th] June, 2011 passed by the learned Magistrate. 17. Taking into account the gravity of the allegations levelled against the petitioner and the facts and circumstances of the case, I am not inclined to accept the contention put forward by the learned Senior Counsel for the petitioner. It is true that the fundamental freedom and liberty of a citizen is precious. If only a bailable offence is made out, the court would not be justified at all in remanding the accused to judicial custody. On the other hand, if the court is satisfied, prima facie, that a serious non-bailable offence is made out against the accused, the fundamental right to freedom of the accused do not extent to the extent of nullifying the discretion of the court to remand him to judicial custody. 18. I do not find any ground to allow the bail application. I am also satisfied that there is no change of Bail Appln.No.6468/2011 **==> picture [26 x 9] intentionally omitted <==** circumstances warranting a re-consideration of the question of granting bail. I am also of the view that the petitioner was not justified in making another application for bail within a span of four days, when no change of circumstances is made out. For the aforesaid reasons, the Bail Application is dismissed. ## **K.T.SANKARAN, JUDGE** skj