SOUDA BEEVI v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934** ## **Bail Appl..No. 9124 of 2012 (A)** **-----------------------------AGAINST THE ORDER IN BA.7664/2012 DATED 23-11-2012 SC.7/2012 of ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA -------------------------------------------------------------------** ## **ACCUSED(S)/PETITIONER/ACCUSED:** **-------------------------------------------------** **SOUDA BEEVI, AGED 48 YEARS, D/O. AISHA BEEVI, KOPLI VEEDU, KULASEKHARAPATHI, PATHANAMTHITTA P.O., KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.S.SREEKUMAR (SR.)** ## **COMPLAINANT(S)/RESPONDENT/COMPLAINANT:** **---------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY DIRECTOR GENERAL OF PROSECUTION SRI. ASIF ALI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18-12-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 9124 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of December, 2012. ## **ORDER** The petitioner, who is the first accused in S.C. No.7 of 2012 pending before the Additional District and Sessions Judge (Ad-Hoc) Fast Track-I Court, Pathanamthitta has approached this court again seeking relief. She stands accused of having committed offences punishable under Sections 120B, 417, 420, 366 and 376(2)(g) and 342 read with Section 34 I.P.C. and under Sections 10, 24(b), (f) and (g) of the Emigration Act and Section 5 of the Immoral Traffic (Prevention) Act. 2. The facts of the case and the involvement of the petitioner in the case have been narrated in detail in Annexure A2 which is an order in B.A.7664 of 2012 filed by the petitioner and which was dismissed by order dated 23.11.2012. It is therefore unnecessary to reiterate the facts in the present order. B.A.9124/2012. 2 3. Learned Senior Counsel appearing for the petitioner pointed out that on going through the final report filed by the prosecution, and the materials relied on by them for casting liability on the petitioner, it is found that there are no materials to establish the role of the petitioner in the various offences alleged against her. It was submitted by the learned Senior Counsel for the petitioner that the prosecution mainly relies on the evidence of C.Ws.9, 10 and 11 to establish the complicity of the petitioner. Referring to the statement of C.W.11, it was contended that in fact it goes against the prosecution case and it supports the case of the petitioner. The statement of C.W.11 is to the effect that two of her sisters were taken to Dubai by the petitioner herein and they were conveniently employed. Learned Senior Counsel pointed out that the allegation that the petitioner is in the habit of taking ladies abroad and throwing them into sex racket is not supported by any material. Learned Senior counsel emphasized that once the final report is filed, one needs to look into the evidence B.A.9124/2012. 3 produced by the prosecution along with the final report only and if that be so, it could not be said that there are materials to show the involvement of the petitioner. Learned counsel also emphasized that none of the persons who are alleged to have ravished the victim in Dubai are either identified or made an accused in the case and as far as the petitioner herein is concerned, she could not be held liable for the offence punishable under Section 376 I.P.C. Relying on the decision reported in **Priya Patel vv. State of M.P.** ((2006) 3 SCC (Cri) 96), learned Senior Counsel for the petitioner pointed out that under no circumstance a woman can be held liable for the offence of rape. Learned Senior Counsel also pointed out that even though there is an allegation that the petitioner had several passports, that allegation stands unsubstantiated by any material produced along with the final report. There are absolutely no materials, according to the learned counsel, to show that the petitioner has committed the offences punishable under the various provisions of the Emigration Act. Since the B.A.9124/2012. 4 main offences alleged against the petitioners are neither supported by any material nor has support of law, the incarceration of the petitioner at the pre-trial stage is quite uncalled for. 4. Learned Senior Counsel appearing for the petitioner raised a contention that committal proceeding itself is bad in law. According to the learned counsel, even going by the prosecution allegations, the offences are committed abroad and if that be so, Section 188 of the Cr.P.C. is attracted and the committal proceeding without the sanction of the Central Government is bad in law. Learned Senior Counsel went on to point out that on the filing of the final report, the learned Magistrate who takes cognizance of the offence has to follow the procedures laid down under Sections 207 to 209 Cr.P.C. Going by Section 209 Cr.P.C., if the learned Magistrate finds that the case is one exclusively triable by a Court of Sessions, he has to commit the case to the Court of Sessions. Sections 207 to 209 Cr.P.C. envisages several statutory judicial acts by the B.A.9124/2012. 5 Magistrate and those steps taken by the learned Magistrate form part of an enquiry. In support of his contention, learned counsel relied on the decisions reported in **Rajender Kumar Jain v. State through Spl. Police Establishment** (1980 KHC 715) and **State of U.P. v. Lakshmi Brahman** (1983 KHC 392). 5. According to the learned Senior Counsel for the petitioner, so far the prosecution has not obtained the sanction required under Section 188 Cr.P.C. and the trial is getting indefinitely postponed. Under such circumstances, it is contended that the petitioner may be released on bail. 6. Learned Director General of Prosecution very vehemently opposed the petition. Referring to Annexure A2, which is an order of this court in an earlier bail application filed by the petitioner, the learned Director General of Prosecution pointed out that this court had considered the prayer for bail after evaluating the materials against the petitioner and was satisfied that there were sufficient materials to show the involvement of the B.A.9124/2012. 6 petitioner. Learned D.G.P. pointed out that the claim of the petitioner that the evidence as against him is confined to C.Ws.9, 10 and 11 is incorrect. The main evidence relied on is the evidence of C.W.1, the victim herself. It is well settled, according to the learned D.G.P. that the evidence of prosecutrix alone is sufficient for a conviction in a case of rape, for, corroboration in such cases is not considered as a rule, but only as a matter of prudence. It is not correct, according to the learned D.G.P. that the petitioner cannot be held liable for the offence under Section 376 I.P.C. The entire allegation against the petitioner will have to be looked into and then a conclusion has to be drawn to see if offences are made out. Learned D.G.P. drew the attention of this court that the prosecution allegation is that the petitioner was in the habit of regularly taking ladies abroad under the guise of offering them lucrative employment there and the helpless victim throwing into sex racket. It is by sheer providence, according to learned D.G.P., that the victim in this case had managed to escape and she narrates B.A.9124/2012. 7 in detail the agonizing experience she had at the hands of the petitioner when she was in Dubai. 7. As regards the contention regarding sanction under Section 188 Cr.P.C. and the contention that committal proceedings are bad in law, learned D.G.P. pointed out that a reading of Section 188 Cr.P.C. would indicate that the enquiry contemplated under that provision is the enquiry under Sections 200 to 204 of Cr.P.C. , and not committal proceedings. It has been laid down, according to learned D.G.P., that in a committal proceedings, the learned Magistrate does not make any enquiry, but merely acts as a post office by forwarding the records to the Court of Sessions which has to try the case. It is also pointed out by the learned D.G.P. that at any rate there is no challenge to the committal proceedings in this case and therefore the said question does not arise for consideration at all. 8. The learned D.G.P. also pointed out that sanction under Section 188 Cr.P.C. would be obtained very soon and effective steps have been taken for getting the B.A.9124/2012. 8 sanction. Learned D.G.P. drew the attention of this court to the character of the lady as observed by this court in its earlier order and contended that releasing her on bail would create havoc and may make the trial a mockery. It is brought to the notice of the court that even while she is in custody, she has managed to have the victim threatened by her henchmen and under such circumstances, no leniency be shown to the petitioner. 9. As rightly pointed out by the learned D.G.P., it may not be appropriate to say that the materials as against the petitioner are confined to the statements of C.Ws. 9, 10 and 11. It may be that from the statement of C.W.11, the prosecution may not derive much benefit as the statement of the said witness is not sufficient to show that the petitioner has been taking ladies abroad regularly and throwing them into sex racket. But that by itself is not decisive. The criticism that no investigation was conducted abroad and the persons who were alleged to have committed rape on the victim had neither been identified B.A.9124/2012. 9 nor made an accused in the case does not help the petitioner at all. The mere fact that apart form the practical difficulties of identifying those persons, in the case on hand, the involvement of the petitioner is the most crucial factor and to determine that fact, even if some of the other persons who have committed the said offence are not arrayed as accused cannot advance the case of the petitioner. As rightly pointed out by the learned D.G.P., if the evidence of C.W.1 is believed and found to be credit worthy, well that would be sufficient in law to establish the involvement of the petitioner. Of course there is a criticism that there is nothing to show that the victim had complained to the police in Dubai about the sufferings undergone by her and nor she had filed a complaint before the Indian Consulate in Dubai. We need not consider the impact of those aspects now even assuming it to be true. There are materials to show as of now that certain communications with the Consulate of India in Dubai have been seized and produced by the prosecution. B.A.9124/2012. 10 10. One must remember that the sufferings undergone by the victim is indeed tremendous which she chose not to divulge to anybody. The mere fact that there might have been some delay in lodging the complaint may not be fatal. Whatever that be, these are all matters to be considered at the time of trial and final hearing of the case. Suffice is to say that the claim of the petitioner that there are no materials as of now against her to show her involvement in the various crimes cannot be accepted. 11. In the decision reported in **Priya Patel's case** (supra) it is observed as follows: “8. A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of sub-section(2)(g) provides that "whoever commits 'gang rape" shall be punished etc. The Explanation only clarifies that B.A.9124/2012. 11 when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. "Common intention" is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a pre-arranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by B.A.9124/2012. 12 the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their common intention" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g).” 12. A reading of the decision shows that the facts in the said case are entirely different. Here, the petitioner is accused of having hatched a conspiracy to take the victim and similarly situated persons abroad and forcing them into sexual exploitation. Going by the statement of C.W.1, there are several acts alleged to have been committed by the petitioner which would show that she was an active privy to the various acts of sexual assault committed on the victim. B.A.9124/2012. 13 In the circumstances of the case, it is therefore difficult to accept the claim of the learned Senior Counsel for the petitioner that the petitioner cannot be accused of having committed the offence of rape. The offence of conspiracy is also there and it cannot be said that petitioner is not an abettor. 13. As regards the contention based on Section 188 Cr.P.C. is concerned, as rightly pointed out by the learned D.G.P., the committal proceedings are not assailed in this application and therefore it does not arise for consideration. If the petitioner is really aggrieved by the illegality of the committal proceedings, it is open to her to challenge it in appropriate proceedings and having not done so, merely to contend that committal proceedings are bad in law in this application cannot be countenanced. 14. All the above aspects were considered by this court while disposing of B.A.7664 of 2012 by order dated 23.11.2012 whereby the petitioner was declined bail by this court. This court, in the said order had given in detail the B.A.9124/2012. 14 reasons as to why it will not be appropriate to release the petitioner on bail. Those circumstances are still continue. The result is that this application is without merits and it is liable to be dismissed. I do so. **P. BHAVADASAN, JUDGE** sb.