IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Bail Appl..No. 407 of 2009(E) ----------------------------------- CRIME NO.372/2008 OF KUMBLA POLICE STATION PETITIONERS/ACCUSED : ------------------------------ 1. ABDUL JALEEL, AGED 50 YEARS, A1 S/O.SULIMAN. 2. KHADEEJA, AGED 33 YEARS, A2 W/O.SULIMAN. 3. MOHAMMED A3 S/O.SULIMAN. 4. AFSA A4 W/O.MOHAMMED. 5. SHEREFA A5 W/O.ABOOBACKER, ALL ARE RESIDING AT KERLA HOUSE, ARIKUDY, KUMBLA POST, ARIKUDY VILLAGE, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA, REP. BY INSPECTOR OF POLICE, KUMBLA POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. -------------------------------- B.A. No.407 OF 2009 -------------------------------- Dated this the 19th day of February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 498A, 307 of I.P.C. According to prosecution, accused nos. 1 to 5, who are husband and close relatives of the husband, allegedly harassed the defacto complainant and committed the offences under the above said sections. The defacto complainant delivered a baby and the Doctor reported that the blood results of both the defacto complainant and the child for HIV was positive. Her husband was taking some medicines and he told her that it was for ulcer. It is also understood that her brother-in-law and his wife were also having the same problem and the entire family knew that in the family, there was AIDS and suppressing this fact, the marriage was conducted and thereby, all the accused committed matrimonial cruelty and other offences. 3. Learned counsel for petitioners submitted that petitioners are absolutely innocent of the allegations made. B.A.No.407 of 2009 2 Nobody knew that there was AIDS in the family. In fact, to the knowledge of petitioners, no person in the family had any AIDS at the time of marriage of petitioner. It is only after birth of the child that parties have come to know that the wife and child had AIDS. But, first accused is reported to have AIDS and it is not understood how the disease was contracted and from whom to whom. 4. But first petitioner's brother or his wife did not have any such problem and this is confirmed by blood test also (The report is handed over for perusal). It is not correct to say that nobody in the family suppressed any vital information. Accused nos. 2 to 5 are unnecessarily implicated. All the allegations regarding the demand of dowry etc. have been put forward only subsequent to the delivery, it is submitted. There was no quarrel in the family and the defacto complainant has no such case also and in these unfortunate circumstances, it is submitted that petitioners may be granted anticipatory bail. 5. Learned Public Prosecutor submitted that there is allegation that demands were made for money and dowry as per allegations in the complaint. But, he fairly conceded that B.A.No.407 of 2009 3 there is no allegation that the parties had lived separately or there was any mediation etc. due to any quarrel prior to the delivery. The complaint is filed only after the delivery and according to defacto complainant, she remembered that first accused was taking medicines on the pretext that he was having some ulcer and hence, she believed that he was suppressing the fact that he was having AIDS. Learned counsel for petitioners at this stage clarified that to first accused's knowledge, there is no medicine for AIDS and if at all he was taking any medicine, it was not for AIDS. On hearing both sides, considering the peculiar facts and circumstances of this case, I am of view that anticipatory bail can be granted to petitioners on conditions. Blood test result was produced for perusal and it is found that the blood test for HIV is negative in respect of accused nos. 3 and 4. Hence, the following order is passed : Petitioners shall surrender before the Magistrate court concerned within seven days from today and they shall be released on bail on their executing bond for Rs.25,000/- each with two B.A.No.407 of 2009 4 solvent sureties each for like sum to the satisfaction of the learned Magistrate on the following conditions : i) Petitioners shall report before the investigating officer as and when directed and co-operate with the investigation. ii) Petitioners shall not influence or intimidate any witness or tamper with evidence or commit any offence while on bail. The petition is allowed. K.HEMA, JUDGE pac