Shaffi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 02ND DAY OF AUGUST 2019 / 11TH SRAVANA, 1941** ## **BAIL APPL.NO.5304 OF 2019** **CRIME NO.3106/2017 OF KOLLAM EAST POLICE STATION , KOLLAM** ## **PETITIONER/ACCUSED:** **SHAFFI, AGED 36 YEARS, S/O.SHEREEF, PULINKULATHU KIZHAKKATHIL VEEDU, PINAMOODU JUNCTION, KILIKOLLOOR, KOLLAM.** **BY ADV. BIJU C. ABRAHAM** ## **RESPONDENT/STATE:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682031.**| |**2**|**SUB INSPECTOR OF POLICE,**| ||**KOLLAM EAST POLICE STATION, KOLLAM-691 001.**| ## **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -----------------------------------------B.A. No. 5304 of 2019 -----------------------------------------Dated this the 2[nd] day of August, 2019 ## O R D E R The petitioner herein has been arrayed as the sole accused in the instant Crime No.3106/2017 of Kollam East Police Station, which has been registered for offences punishable under Sec.376 of the IPC, Secs. 3 & 4 of the POCSO Act and Secs.66(e) and 67A of the Information Technology Act, 2000, on the basis of FIS given by victim girl on 8.9.2017 at 12.30 pm in respect of the alleged incidents which have happened from 2014 onwards since she studied in Standard IX. 2. The petitioner has surrendered before the Investigating Officer on25.6.2019, and thereafter his bail application was rejected by the notified Special Court for POCSO cases as per Anx.A3 order dated 15.7.2019 and thereafter he has been under judicial custody since then. Counsel for the petitioner would point out that the abovesaid allegations raised against the B.A. No. 5304 /2019 **==> picture [19 x 9] intentionally omitted <==** petitioner are false and baseless, and that the same has been instigated on account of the enmity of the victim girl's mother, as she has failed to settle some of her financial liabilities owed to the petitioner, etc. 3. The FIS in the instant case has been given on 8.9.2017 by the victim girl who was then aged 17 years. (It appears that subsequently she has already attained the majority age of 18 years.) The petitioner is now aged 38 years. The version in the FIS is that, the victim girl was then being taken to her school in the autorickshaw driven by the petitioner. When the victim girl was studying in Standard IX, on a day when she was taking rest in her house in the evening, the petitioner had come there and had forceful sexual intercourse with her. Later he had threatened her that he is having some video pictures showing her intimate scenes regarding the said incident, and that he would divulge the same unless she has sex with him, and she was compelled to have sex with him on certain other occasions as well, and she was succumbed to his threat. B.A. No. 5304 /2019 ..4.. 4. Counsel for the petitioner would point out that the FIS is made as late as on 8.9.2017 in respect of the alleged incidents which have happened as early as in the year 2014, and that there is long and unexplained delay on the part of prosecution to register such a belated crime. Further that the victim's mother had taken personal loans from the petitioner which she did not repay, and since the petitioner was in urgent need of money he was always insisting that she should repay it, and it is only because of her evil designs that her daughter was made to forward to make these false allegations against the petitioner. Further it is pointed out that, due to the intervention of well wishers, victim girl's family understood the futility of making such false allegations, and the victim girl had sworn to Anx.A2 notarized affidavit stating that she has no further complaint against the petitioner, and that she has no objections in quashment of the impugned criminal proceedings in respect of the present crime. That the petitioner thereafter filed B.A. No.1260/2018 before this Court seeking anticipatory bail in respect of the present crime, wherein the abovesaid affidavit as per B.A. No. 5304 /2019 **==> picture [18 x 9] intentionally omitted <==** Anx.A2 herein was produced. This Court after hearing both sides had passed Anx.A1 order dated 12.6.2019 disposing of B.A.No.1260/2018 giving liberty to the petitioner to surrender before the Investigating Officer, and then to seek consideration of his bail application on the same day of his production by the learned Magistrate. This Court had also directed the learned Magistrate to pay due note of the aspects borne out from the affidavit filed by the victim girl as per Anx.A2 herein. That when the abovesaid application was being considered, the lady victim had personally come to the court, without any notice from that Court and she made submission before the Special Court that the affidavit as per Anx.A2 herein is forged, and that she had only given her signature in a blank paper which has been misused by the petitioner. Taking note of these aspects the Special Court has rejected the plea of petitioner for bail, and the petitioner was remanded since 25.6.2019. It is very interesting to note that the said Anx.A2 affidavit dated 3.8.2018 sworn to by the victim is a notarized affidavit, and was produced before this Court in Anx.A1 B.A. No. 5304 /2019 **==> picture [19 x 9] intentionally omitted <==** B.A.No.1260/2018, and that application was disposed of by this Court as per Anx.A1 order dated 12.6.2019, after hearing not only the Prosecutor, but also the counsel for the victim and neither at the time of disposal of that application on 12.6.2019 or thereafter, the respondent victim has made any claim that the said notarized affidavit is forged, etc. 5. Further it appears that the police has registered a separate crime as Crime No.1180/2019 before the Kollam East Police Station for offences punishable under Secs.417, 506(i), 3541A(iii), 465, 468 & 471 of the IPC, in respect of the abovesaid allegations made by lady victim that the petitioner has forged the affidavit as Anx.A2 herein. The abovesaid Crime No.1180/2019 has been transferred from the Kollam East Police Station to Eravipuram Police Station, wherein the said crime has now been registered as Crime No.735/2019 for the same offences. On being queried, learned Prosecutor would submit that, later the lady victim has retracted from her stand about forgery, and her B.A. No. 5304 /2019 **==> picture [18 x 9] intentionally omitted <==** additional statement has been recorded under Sec.161 of the Cr.P.C has been recorded by the police in that crime, wherein she has stated that no such forgery has taken place, and police has deleted all the offences relating to forgery and only offences as per Secs.506(i) & 354A(1)(iii) of the IPC are now included in the said crime. 6. Counsel for the petitioner has also pointed out that the very same lady victim had earlier made similar rape allegations as against another man, wherein Crime No.2925/2017 was registered by the Kollam East Police Station for similar offences of rape, etc. and later the lady victim has married the said accused in the said crime. On being queried regarding those aspects, the learned Prosecutor has submitted on the basis of instructions that it appears that the lady victim has married the said accused. 7. On the abovesaid basis learned Prosecutor would point out that the very act of the lady victim in personally coming over to B.A. No. 5304 /2019 ..8.. the Special Court to oppose the bail application of the petitioner and to make allegation that affidavit as per Anx.A2 herein has been forged by the petitioner, and later retracted from the same stating that no such forgery has taken place, etc, would clearly show that the version of the lady victim is highly unbelievable and lack credibility, and cannot be the basis for proceeding further for a series of offences as in the instant one. Further that, the blatant falsity of her allegations of forgery of the notarized affidavit urged before the Special Court in Anx.A3 proceedings on 15.7.2019 is clear from the fact that she has never made any such allegations before this Court in Anx.A-1 proceedings on 12.6.2019 or even thereafter. 8. Still further, counsel for the petitioner would point out that the earlier conduct of the very same lady victim in raising similar allegations of rape as against yet another man and then in retracting from her stand and marrying the said accused, would also speak volumes about the thorough lack of bonafides and B.A. No. 5304 /2019 **==> picture [19 x 9] intentionally omitted <==** credibility as far as her testimony is concerned. In view of these aspects, counsel for the petitioner would vehemently urge that this Court may order to release the petitioner on regular bail, as he has already suffered detention since 25.6.2019. 9. Learned Prosecutor has opposed the grant of regular bail and has submitted that there is strong likelihood that the petitioner intimidating and influencing witnesses including the lady victim. 10. After hearing both sides and after careful evaluation of the facts and circumstances of the case, this Court is constrained to take the view that the very credibility and believability of the versions of the defacto complainant raises serious question marks. Even without notice of any Court, she has personally gone to the Special Court concerned to oppose the bail application of the petitioner and made her submission that the notarized affidavit as per Anx.A2 herein which was filed not only before the Special B.A. No. 5304 /2019 ..10.. Court, but also before this Court on a previous occasion, has been forged by the petitioner. The victim was heard by this Court through her counsel in Anx.A1 proceedings on 12.6.2019 and she has never made any such allegations before this Court either at that time or thereafter. Later she has taken a volte face by taking a stand before the police that the abovesaid allegations of forgery earlier made by her are false, and she has retracted those allegations. It appears that similar allegations of rape as against yet another man on a previous occasion was made by her, which led to registration of crime for rape and other offences, against that man. This Court is now given to understand that the victim has even married the accused in the said crime against whom she had raised allegations of rape. It thus appears that the lady has even retracted from the allegations earlier made as against that man in the said rape offence. 11. Cases like this are of extremely disturbing nature and would have the effect of corroding the foundations of our rule of B.A. No. 5304 /2019 **==> picture [22 x 7] intentionally omitted <==** law. In matters like this many a time crime will have to be registered on the basis of oral allegations made by the victim. This Court hopes and prays that cases of this nature would only be a rare exception. If such volte faces are made by the victim from time to time, it would be shaking the foundations of rule of law. When a competent court of law on the basis of materials placed before it takes a decision to grant or refuse bail, and later it turns out that the very ground of grant or refusal based on certain factual aspects are absolutely false, etc, then it would be extremely disturbing in the very functioning of the Courts who are dealing with administration of justice. This will have the effect of extreme loss of confidence of the public in our police investigation machinery, prosecution agency and the Courts. 12. Petitioner has already suffered detention since 25.6.2019, which is for the last 38 days or so. Suffice to say that the petitioner has made out a strong probable case that his continued detention may not be necessary and so he could be released on B.A. No. 5304 /2019 ..12.. regular bail subject to stringent conditions. Accordingly it is ordered that the petitioner shall be released on bail, on his executing bond for Rs.40,000/- and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the competent court below concerned. However the grant of bail will be subject to the following conditions:- - i. _The petitioner shall appear before the Investigating Officer on every 2[nd] and 4[th] Saturdays, at any time between 10 am and 1 pm, for a further period of 3 months._ - _ii. The petitioner shall not intimidate or attempt to influence the defacto complainant/victim, witnesses; nor shall he tamper with the evidence._ - _iii. The petitioner shall not commit any offence while on bail._ - _iv. The petitioner shall not go anywhere near to the workplace or residence of the lady victim._ - _v. The petitioner shall not enter into or reside within the territorial limits of the Police Station within whose limits the lady victim is residing, until the conclusion of investigation process, except for the limited purpose of reporting before the Investigating Officer concerned in this crime or any other crimes, or for attending to the_ B.A. No. 5304 /2019 ..13.. _Court in relation to this case or any other cases or for contacting his lawyers/advocates concerned._ - _vi. However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned shall stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law. 13. Before parting with this case, it is felt by this Court that it is highly necessary that investigation in the present Crime No.3106/2017 of Kollam East Police Station as well as Crime No.735/2019 of Eravipuram Police Station are conducted by the police in a fair and just manner, so as to elicit full confidence of the public in the investigation process. The complainant has even gone to the extent of alleging that the affidavit sworn to by her before a notary public was forged, and later she would take the stand that the allegations of forgery are wrong, etc. B.A. No. 5304 /2019 **==> picture [24 x 9] intentionally omitted <==** 14. It is now submitted by the learned Prosecutor that, it appears that Kollam East Police Station and Eravipuram Police Station, are both within the province of the District Police Chief, Kollam City. Accordingly it is ordered that, the District Police Chief, Kollam City, will take immediate steps to ensure that the investigation in respect of Crime No.3106/2017 of Kollam East Police Station as well as Crime No.735/2019 of Eravipuram Police Station, be entrusted to a superior officer not below the rank of Inspector of Police, so that the said investigation is also monitored by a still higher officer not below the rank of Deputy Superintendent of Police/Assistant Commissioner of Police. Orders in that regard should be immediately passed by the District Police Chief and the investigation in respect of two crimes should be entrusted to a competent officer of proven reputation and integrity, and the investigation should be properly monitored and supervised by such superior officer. In case the investigation is entrusted to an officer of the rank of Deputy Superintendent of Police/Assistant Commissioner of Police, then it shall be ensured B.A. No. 5304 /2019 **==> picture [24 x 9] intentionally omitted <==** that such investigation by the said officer is monitored by an officer not below the rank of Superintendent of Police. Those are all matters which are left to the discretion of the District Police Chief, Kollam City. 15. The District Police Chief, Kollam City, will also immediately call for the entire CD files in relation to both crimes and should get a comprehensive report from an officer not below the rank of Deputy Superintendent of Police/Assistant Commissioner of Police, about the investigation so far conducted, and its deficiencies and the steps to be immediately taken to ensure that a fair and just investigation is conducted so as to elicit maximum confidence of the public in the competence, integrity, fairness and impartiality of the police force. Thereafter the District Police Chief will pass necessary orders entrusting the investigation to the other officer as directed herein above. Necessary supervisory directions and guidelines should also be given by the District Police Chief, Kollam City, to such new investigating officer for the B.A. No. 5304 /2019 ..16.. effective and impartial conduct of investigation in these two crimes. The District Police Chief may bear in mind that our police investigation machinery cannot afford to lose the trust of the public about their fairness and impartiality. 16. Learned Prosecutor will ensure that a copy of this order is directly forwarded to the State Police Chief and the District Police Chief, Kollam City, for necessary information and immediate compliance. With these observations and directions, the above Bail Application will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG