ROY J. VAYALAT Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners in these bail applications are arrayed as accused Nos. 1 to 3 in Crime No.144/2022 of Fort Kochi Police Station, Ernakulam District alleging commission of offences under Ss. 370 A (1) and (2), 511 of 328, 354 A, 354, 506 and 509 of the Indian Penal Code read with 34 of that Code; Sec. 7 read with Sec. 8 of the Protection of Children from Sexual Offences Act; Sec. 77 of Juvenile Justice Act and Sec. 15 B of the Kerala Abkari Act. The petitioner is B.A. No.941/2022 is the 1st accused, the petitioner in B.A. No.1020/2022 is the 2nd accused and the petitioner in B.A. No.1018/2022 is the 3rd accused. The parties are hereinafter referred to by their ranking in the array of accused unless otherwise indicated.

(2.) Briefly and shorn of all unnecessary detail, the facts are that the 3rd accused was the promoter and owner of an organisation known by the name 'BIS Unicorn1. The de facto complainant was working with accused No.3 as Executive Assistant for some period of time. In the month of October, 2021, the 3rd accused informed the de facto complainant that she would have to travel to with the de facto complainant to Ernakulam to attend a business meeting. The de facto complainant informed the 3 rd accused that she would go to Ernakulam with her minor daughter aged 17 and her husband. It is alleged that in order to avoid the husband of the de facto complainant, the 3rd accused informed the de facto complainant in the afternoon of 19/10/2021 that the meeting at Ernakulam was cancelled. It is stated that the husband of the de facto complainant accordingly left for Wayanad, in connection with his business. Thereafter, late in the evening, the same day, 3rd accused informed the de facto complainant that they have to go to Ernakulam as originally planned and by about 10 p.m, the de facto complainant, her minor daughter along with two other ladies (one of whom is stated to be working for the 3 rd respondent as a 'tele caller') started for Cochin from Calicut. They checked into the hotel 'Holiday Inn' where rooms had been booked for them by the 2nd accused. According to the prosecution the 3rd accused had no business meeting fixed at Ernakulam and the same was a ruse to get the de facto complainant, her daughter and the other two women to Ernakulam on some false pretext. On the evening of 20/10/2021, the de facto complainant, her minor daughter and the 2 other ladies accompanying them were asked to come to the hotel 'Crowne Plaza' Ernakulam where they were introduced to the 2nd accused by the 3rd accused. From there they proceeded to a hotel in Fort Cochin belonging to the 1st accused in a car belonging to the 2 nd accused. After they reached the hotel, the de facto complainant and others including the minor daughter of the de facto complainant were taken to a bar/nightclub in the hotel. It is alleged after reaching the hotel, the 2nd accused had offered to the de facto complainant and others including her minor daughter some soft drinks which they refused as they felt that the soft drink might be spiked. It is alleged that the 3rd accused had also handed over a beer can to the minor daughter of the de facto complainant and on noticing the same, the de facto complainant had removed the beer can from her daughter's hand. It is alleged that the 1st accused introduced himself to the de facto complainant and others as being the owner of the hotel. It is alleged that the 1st accused tried to coerce the minor daughter of the petitioner to dance with him. It is alleged that the de facto complainant and her daughter refused and they moved to a corner of the room to get away from the 1st accused. It is alleged that again the 1st accused forcefully attempted to pull the minor daughter of the de facto complainant towards him and when the de facto complainant attempted to push him away, he grabbed the de facto complainant and held her close to his body. It is alleged that the de facto complainant and others had left the party midway but were forced to come back in by the 3 rd accused and another lady. Since the bar was seen functioning well beyond the permitted hours, the offence under the provisions of the Abkari Act was also charged.

(3.) Heard Sri. Saiby Jose Kidangoor, for the 1st accused, Sri. Peeyus A Kottam for accused Nos. 2 and 3 and Sri. Grashious Kuriakose, Senior Advocate and Additional Director General of Prosecutions assisted by Sri. Suresh, Senior Public Prosecutor for the State. The learned counsel for the 1st accused vehemently contends that the complaint raised by the de facto complainant is absolutely false. It is submitted that the complaint has been raised with malicious intentions, the only goal being to blackmail the 1st accused and to extract money from him. It is submitted that the de facto complainant had earlier filed a similar complaint against one Bijoy Antony before the Dy.S.P, Kalpetta which was later withdrawn. It is submitted that a complaint was also filed against one Manoj Mathew before the Superintendent of Police, Wayanad which was also withdrawn. It is submitted that the de facto complainant is an unlicensed money lender and a woman of low repute and morals and who is involved in various complaints and crimes in Sulthan Bathery, Kalpetta and Vythiri. It is submitted that the Income Tax Department had conducted a raid on the de facto complainant and huge sums of unaccounted money were recovered from her. It is alleged that there are more than 10 to 15 cases under Sec. 138 of the Negotiable Instruments Act against the de facto complainant. Reference is also made to Annexure-A2 where the de facto complainant was convicted for an offence under Sec. 120(0) of the Kerala Police Act after pleading guilty to the offence. It is submitted that the complaint has been registered also on account of the malafide intentions of the Investigating officer in this case. It is submitted that the de facto complainant has a 'YouTube' Channel where she uploads videos regarding restaurants and food outlets and that on the day in question after leaving the hotel owned by the 1st accused, late at night, she had uploaded a video which shows that her case of being upset and intimidated after the incident at the hotel is completely false. It is submitted that there are conversations between a lawyer representing the de facto complainant and the 3rd accused in the case regarding payment of money which indicates that the attempt is only to blackmail the petitioner. It is submitted that the attempt of the Investigating officer is only to humiliate the petitioner and somehow take him into custody. It is submitted that considering the nature of the allegations the custodial interrogation of the petitioner is not necessary in the matter. The learned counsel appearing for accused Nos. 2 and 3 would reiterate the contentions raised by the learned counsel for the 1st accused. Additionally, WhatsApp chats between the minor victim and the 3rd accused in the case are produced and referred to show that even in the month of January 2022, the minor victim was talking to the 3rd accused in a manner as if they were close friends. It is submitted that there is no material to suggest that the offence alleged has been committed. Relying on the judgment of the Supreme Court in State of Karnataka by Nonavinakere Police v. Shivanna @Tarkari Shivanna ; (2014) 8 SCC 913 it is contended that the delay in recording the statement of the victim under Sec. 164 Cr.P.C is fatal in this case. It is submitted that though the incident was reported on 31/1/2022, the statement of the victim was recorded only on 2/2/2022 which clearly suggests that the victim was tutored and doctored to give a false statement in the matter. It is submitted that though the alleged incident took place on 20/10/2021, no complaint in this regard was raised till 31/1/2022. It is submitted that the considerations that must weigh with this Court while deciding whether anticipatory bail should be granted are those set out in the judgment of the Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others ; (2011) 1 SCC 694. Specific reference is made to paragraphs 121 and 122 of that judgment. It is submitted that the 3rd accused had filed a complaint against the de facto complainant in this case (Annexure-A7 produced along with Crl.M.ANo.4/2022 in B.A. No.1018/2022) on 21/1/2022 alleging essentially that the de facto complainant was trying to ruin the reputation of the 3rd accused. Reference is also made to a complaint filed by the de facto complainant on 25/1/2022 and also the complaint filed by the victim (daughter of the de facto complainant) on 28/1/2022 to point out that the allegations in the complaint dtd. 31/1/2022 are absolutely false. It is submitted that even while filing the complaint dtd. 25/1/2022 against the 3rd accused, the de facto complainant had no case of the nature projected in the complaint filed on 31/1/2022. It is also submitted that the minor victim while filing the complaint dtd. 28/1/2022 (Annexure-A3 along with Crl.M.A.No.1/2022 in B.A. No.1018/2022) had only pointed out that her pictures were being circulated on social media and no other incident was ever raised. It is submitted that all of the above cumulatively indicate that the complaint dtd. 31/1/2022 is nothing but false.