Bishop Franco Mulakkal Gets Bail in Nun Rape Case [Read Order]

Code of Criminal Procedure, 1973 - Section 439 - Indian Penal Code, 1860 - Sections 342, 376(2)(k), 376(2)(n), 376(C)(a), 377, 506(i) - Bail Application - Allowed.

The survivor is a nun and she was formerly the Mother Superior of St. Francis Convent, Kuruvilangadu. The applicant was the Bishop of the Congregation and he used to oversee the functioning of the Convent. It appears that the investigation has progressed to the final stages. The statement of all material witnesses have been recorded. The prosecution has no case that there is a real danger of the applicant absconding or fleeing if he is released on bail. The applicant was a Bishop with no criminal antecedents and his means, position and standing is not disputed by the State. By imposing appropriate conditions to safeguard the interest of the prosecution, the applicant can now be released on bail.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

MONDAY, THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940

Bail Appl..No. 6927 of 2018

CRIME NO. 746/2018 OF KURAVILANGADU POLICE STATION, KOTTAYAM DISTRICT

PETITIONER/ACCUSED

BISHOP DR. FRANCO MULAKKAL, AGED 54 YEARS, S/O.M.P.AIPPUNNY, BISHOP HOUSE, CIVIL LANE, JALANDHAR RURAL, JALANDHAR, PUNJAB.

BY ADVS.  SRI.P.VIJAYA BHANU (SR.) SRI.AJEESH K.SASI SRI.M.REVIKRISHNAN SRI.P.M.RAFIQ SMT.POOJA PANKAJ SRUTHY N. BHAT SRI.THOMAS J.ANAKKALLUNKAL SRI.V.A.JOHNSON (VARIKKAPPALLIL) SRI.V.C.SARATH SRI.VIPIN NARAYAN

RESPONDENT/COMPLAINANT

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

BY SRI.SUMAN CHAKRAVARTHI SR. PUBLIC PROSECUTOR

O R D E R

Instant application has been preferred under Section 439 of the Cr.P.C. by the accused in Crime No.746 of 2018 registered at the Kuravilangadu Police Station under Sections 342, 376(2)(k), 376(2)(n), 376(C)(a), 377, 506(i) of the IPC. He was arrested in the subject crime on 21.9.2018 and has been in custody since then.

2. The survivor is a nun and she was formerly the Mother Superior of St. Francis Convent, Kuruvilangadu. The applicant was the Bishop of the Congregation and he used to oversee the functioning of the Convent.

3. The allegation is that the applicant visited the St.Francis Mission Home, Kuruvilangadu, on 5.5.2014, and stayed for the night. The survivor was invited to the room in which the applicant was staying and she was subjected to unnatural sex and rape. This was repeated, on 6.5.2014, and numerous instances thereafter, till the end of the year 2016. She lodged a complaint before the District Police Chief in the month of August, 2018 and the crime was later registered on its basis.

4. Sri P.Vijayabhanu, the learned Senior counsel appearing for the applicant submitted that the applicant is a honourable man occupying a very prominent position in the Church with clean antecedents. Various complaints were received against the survivor and hence, proceedings had to be initiated to remove her from her post as Mother Superior. An enquiry was conducted and the report was not in favour of the survivor. Under the impression that the applicant herein was behind the initiation of various proceedings against the survivor, she and her family members have turned against the applicant. According to the learned Senior counsel, the survivor is a lady aged 44 years and no explanation has been offered by her for the delay in setting the law in motion. Finally, it is submitted that the applicant was arrested in the instant crime on 21.9.2018 and substantial part of the investigation is over. The learned Senior counsel has also referred to the decision of the Apex Court in Dataram Singh v. State of Uttar Pradesh and Another [AIR 2018 SC 980] and submitted that a humane attitude requires to be adopted particularly when the accused is entitled to the presumption of innocence until found guilty by a court of law.

5. Opposing the prayer, the learned Public Prosecutor submitted that the apprehension expressed by the State while the earlier bail application was considered still exists. The applicant is a powerful man and if he is released on bail, there is a reasonable possibility that he would tamper with the evidence and influence the witnesses. It is submitted that the statement of the main witnesses have been recorded by the learned Magistrate. However, the presence of the Bishop at Bhagalpur and a Sister could not be secured for the purpose of recording their statement. The case has been transferred to the District Crime Branch and the investigation being in the early stages, the release of the applicant on bail will adversely affect the case of the prosecution is the submission very fervently advanced by the learned Public Prosecutor.

6. I have considered the submissions advanced and have gone through the materials made available. It appears that the investigation has progressed to the final stages. The statement of all material witnesses have been recorded. The prosecution has no case that there is a real danger of the applicant absconding or fleeing if he is released on bail. The applicant was a Bishop with no criminal antecedents and his means, position and standing is not disputed by the State. I am of the view that by imposing appropriate conditions to safeguard the interest of the prosecution, the applicant can now be released on bail.

7. In the result, this application will stand allowed. The applicant shall be released on bail on his executing a bond for Rs.2,00,000/- (Rupees Two lakhs only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. The above order shall be subject to the following conditions:

1). The applicant shall appear before the Investigating Officer on alternate Saturdays between 10 a.m. and 1 p.m., for a period of 2 months or till the final report is filed, whichever is earlier.

2). He shall not enter the State of Kerala until the final report is filed, except for complying with condition No.(1) of this order. If for any extraordinary reason the applicant requires to enter the limits, previous permission has to be obtained from the jurisdictional Court.

3). He shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence. He shall not contact the victim or her family members.

4). He shall not commit any offence while on bail.

5). He shall not leave India without the permission of the Court having jurisdiction and if having a passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicant shall be at liberty to move appropriate application before the Court having jurisdiction.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.