IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 Bail Appl..No. 1660 of 2008() ----------------------------- CRMP.355/2008 of DISTRICT COURT, KALPETTA CRIME NO.40/08 OF KAMBAALAKKAD POLICE STATION .................... PETITIONER --------------------------- IBRAI.P., 46 YEARS, S/O.ABDHURAHIMAN, PANALY HOUSE, KAMBALAKKAD P.O., VYTHIRI TALUK. BY ADV. SRI.A.C.DEVY RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No.1660 of 2008 ------------------------------------------------- Dated this the 24th day of March, 2008 ORDER Application for anticipatory bail. The petitioner faces allegations in a crime registered, inter alia, under Sec.376 of the IPC. The crux of the allegations against the petitioner is that he had sexual intercourse with a neighbour against her will and without her consent on a date about three weeks prior to the date of the registration of the crime i.e., 7/2/08. The petitioner was employed in a construction work near the house of the victim. He is alleged to have gone to the house of the victim and indulged in sexual intercourse with her. Her child happened to step into the house and see the alleged sexual intercourse between the petitioner and the alleged victim. The petitioner allegedly threatened both the victim and her daughter that they will be done away with if they would reveal B.A. No.1660 of 2008 -: 2 :- such incident to any one. Long later, after about 3 weeks, the lady is alleged to have revealed the information to her husband when she found that the petitioner was continuing to threaten her daughter. A crime has, accordingly, been registered. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Even accepting the entire case of the prosecution now, it would be idle to assume that it was a sexual intercourse without the consent and against the will of the woman concerned. Both parties appear to have succumbed to temptation and accepting any standard, the conclusion is inevitable that it was a consensual sexual intercourse and the complaint regarding rape was raised only after the child happened to see the intercourse. At any rate, it would be harsh, insensitive and cruel to compel the petitioner to undergo the trauma of arrest and incarceration for the indiscretion of extra marital intercourse allegedly committed by him even accepting the entire allegations. 3. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor only submits that appropriate conditions may be imposed. Having considered the entire facts B.A. No.1660 of 2008 -: 3 :- and circumstances of this case, I am satisfied that anticipatory bail subject to appropriate conditions which shall ensure the interests of a fair, efficient and expeditious investigation can be granted to the petitioner. 4. In the absence of opposition, it is not necessary for me to advert to the facts in any greater detail in this order. 5. In the result, this petition is allowed. Following directions are issued under Sec.438 of the Cr.P.C: (i) The petitioner shall appear before the learned Magistrate having jurisdiction at 11 a.m. on 31/3/08. He shall be released on regular bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (ii) The petitioner shall make himself available for interrogation before the Investigating Officer between 10 a.m. and 5 p.m. on 1/4/08 and 2/4/08. During this period the Investigator shall be at liberty to interrogate the petitioner in custody and take all necessary steps for the proper conduct of the investigation, including the potency test of the petitioner. Thereafter the petitioner shall appear before the Investigating Officer on all Mondays and Fridays between 10 a.m. and 12 noon for a period of two months. Subsequently, he shall so B.A. No.1660 of 2008 -: 4 :- make himself available for interrogation before the Investigating Officer as and when directed by the Investigating Officer in writing to do so. (iii) If the petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioner and deal with him in accordance with law as if these directions were not issued at all; (iv) If the petitioner were arrested prior to his surrender on 31/3/08 as directed in clause (i) above, he shall be released on his executing a bond for Rs.50,000/- without any sureties undertaking to appear before the learned Magistrate on 31/3/08. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge