IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Bail Appl..No. 6873 of 2008() ----------------------------- CRIME NO.1346/08 OF THODUPUZHA POLICE STATION PETITIONER : ACCUSED ------------------------------ BIPIN THANKKAPPAN, AGED 32 YRS, S/O.THANKKAPPAN, MIMBILLIL HOUSE, VETTIKATTUMUKKU, THALAYOLAPARAMBU. BY ADV. SRI.A.T.ANILKUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 2. SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION IDUKKI. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------------------------- B.A.No.6873 of 2008 --------------------------------------------- Dated this the 19th November, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 294(b), 354 and 376 of IPC. According to prosecution, petitioner used to make frequent telephone calls to the defacto complainant and he wanted to marry her. Defacto complainant was working as a nurse in Bangalore. Because of the frequent calls, she lost her job. Thereafter, she came back to her house. She got a job again in Agra. When she went there, he also went to Agra. From there, he contacted the defacto complainant on several occasions and said that he would marry her. She was invited to accompany him. They went together and he put some sedative in a drink and thereafter, she was taken to a hotel. She was raped by petitioner while she was in an intoxicated state. Petitioner had taken naked photos of the defacto complainant and he threatened that he would publish them. Defacto complainant told him that he should approach his parents if he BA No.6873/2008 2 wanted to marry her. She came to her house. He also went to her house and made the proposal but, her relatives were not prepared to give defacto complainant in marriage to him because, he was not morally good. Defacto complainant was again taken by the petitioner on 23.7.2008 in a motor bike and she was raped threatening to publish the naked photos taken Petitioner's harassment continued and defacto complainant filed a petition before the police alleging rape. Police did not take any action since petitioner showed the naked photos. In such circumstances, petitioner was compelled to file a private complaint based on which, this present crime is registered. 3. Learned counsel for petitioner submitted that the date on which rape was committed at the first instance is not mentioned in the complaint. It is also submitted that petitioner had sent money order to the defacto complainant's sister on several occasions and two money order receipts are produced. It is also submitted that petitioner sent money to the defacto complainant's account and the documents from the bank are also produced. All those happened after the incident. It is also submitted that defacto complainant's mother's sister filed a case BA No.6873/2008 3 against petitioner on 6.10.2008 making certain allegations. Thereafter, her mother also filed a complaint on 12.10.2008. But, neither the above complaints, any whisper was made about the alleged rape. The parties were called to the police station and even at that time, there was no allegation of rape. Petitioner had also filed a complaint, but, even then the defacto complainant did not make any allegation of rape. Learned counsel for petitioner also submitted that there is no medical evidence to establish the case of rape. In such circumstances, petitioner may be granted anticipatory bail since the allegations made against petitioner are absolutely wrong, it is submitted. 4. Learned public prosecutor opposed this bail application and submitted that the case diary reveals that petitioner was harassing the defacto complainant continusly and he had subjected her to sexual intercourse without her consent. He had taken nude photographs and showing the same, he was threatening her and committed rape on her. It is true that the defacto complainant's mother's sister and mother had filed complaints against petitioner. But, defacto complainant had not divulged about commission of rape committed by petitioner BA No.6873/2008 4 either to her mother or to mother's sister. So, the omissions in the complaints are not of any consequence, it is submitted. It is only subsequently that she stated about the incident in a petition filed by her before the police. But, at the time when petitioner was called to the police station, on receipt of her petition, petitioner had shown naked photographs of the defacto complainant and police did not proceed against defacto complainant, under the belief that the act was with the consent of the defacto complainant. On the facts of this case, it is not a fit case to grant anticipatory bail, it is submitted. Petitioner would be required for interrogation and investigation. It is submitted that the matter is under investigation at the initial stage and many more materials will have to be collected in the course of time, it is submitted. 5. On hearing both sides, considering the nature of allegations made, I am satisfied that it is not a fit case to grant anticipatory bail to the petitioner. Though petitioner submitted various facts such as sending money to the bank, money order etc., he failed to explain how those facts can be made ground to grant anticipatory bail to petitioner. The crime is registered as BA No.6873/2008 5 early as on 17.10.2008 and petitioner is required for interrogation and investigation. But, petitioner has not surrendered before either the Magistrate court or before the police. Hence, petitioner is directed to surrender before the Investigating Officer and co-operate with investigation without any delay. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. The petition is dismissed. K.HEMA, JUDGE csl