IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 2ND JANUARY 2008 / 12TH POUSHA 1929 Bail Appl..No. 7846 of 2007() ----------------------------- CRIME NO.735/07 OF VAIKOM POLICE STATION : PETITIONER/ACCUSED 1 & 2 ----------------------------------- 1. VINEESH, AGED 27, S/O.VASU, VADAKKEKOLAYIL HOUSE, VADAKARA KARA, VELLOOR VILLAGE, VAIKOM TALUK. 2. ANCE, AGED 22, S/O.MAJEED, THAINARPALLI, VARIKKAMKUNNU KARA, VAIKOM TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENTS: COMPLAINANT ------------------------ 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, VAIKOM POLICE STATION. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.7846 of 2007 ------------------------------------- Dated this the 2nd day of January, 2008 ORDER Application for anticipatory bail. Petitioners are accused 1 and 2. Altogether there are 6 accused persons. The victim is a girl student of the 8th std. She was born on 19.01.1994. She allegedly had sexual intercourse with accused 4, 5 and 6 on 21.11.07. Her father lodged a complaint before the police. When she was interrogated, she narrated that she had sexual intercourse at the first instance with the petitioners in December, 2006. That was a date on which the girl had not attained the age of consent, ie. 16 years. With consent or without consent intercourse with her amounts to the offence of rape and accordingly the petitioners have been brought on the array of accused. 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. Even admittedly the sexual intercourse was with consent of the girl concerned and there is no specific data to fix the date of commission of the offence after which alone the age of the girl can be precisely ascertained. In these circumstances, the petitioners may be granted anticipatory bail. Some of the co-accused who had gone B.A.No.7846 of 2007 2 into police custody were allegedly badly manhandled by the police and this allegedly instills an apprehension in the mind of the petitioners that they will also be subjected to similar ordeal if they are arrested and detained by the police. In these circumstances, it is prayed that the petitioners may be granted anticipatory bail. At any rate, they may be given opportunity to surrender before the learned Magistrate to abate the threat of physical harm to them in police custody. 3. The learned Public Prosecutor opposes the application for grant of anticipatory bail. The learned Public Prosecutor submits that the petitioners may be directed to surrender before the learned Magistrate and seek regular bail. There shall be no physical harm to them in police custody, submits the learned Public Prosecutor. 4. In the peculiar facts and circumstances of this case, I am satisfied that directions can be issued under Section 438 Cr.P.C to enable the petitioners to surrender before the learned Magistrate and seek regular bail without the threat and risk of any harm and harassment in police custody before they appear before the Magistrate. B.A.No.7846 of 2007 3 5. In the result, the Bail Application is, allowed in part. The following directions are issued under Section 438 Cr.P.C. i) The petitioners shall surrender before the learned Magistrate having jurisdiction at 11 a.m on 09.01.08. They shall be at liberty to apply for bail before the learned Magistrate. The learned Magistrate must expeditiously pass appropriate orders on such application for bail. ii) The Investigator shall also be entitled to apply for custody of the petitioners. The learned Magistrate must pass appropriate orders expeditiously on such application for custody also; iii) If the petitioners do 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 petitioners and deal with them in accordance with law as if those directions were not issued at all. Hand over a copy of this order to the learned counsel for the petitioners. (R.BASANT, JUDGE) rtr/- B.A.No.7846 of 2007 4