IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Bail Appl..No. 2976 of 2009() ----------------------------- CRIME NO.170/2008 OF BADIADKA POLICE STATION PETITIONER (S): ACCUSED ------------------------------------------ RAGHAVAN NAIR, S/O. CHANDRAN NAIR, JULU HOUSE, MUNDITHADKA, MUGGU, KASARGODE. BY ADV. SRI.SOJAN MICHEAL RESPONDENT(S): --------------- STATE OF KERALA, (SI OF POLICE) CRIME NO. 170/2008 OF BADIADKA POLICE STATIN) REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------- B.A.No.2976 of 2009 --------------------------- Dated this the 24th day of June, 2009 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.170 of 2008 of Badiadka Police Station. 2. The offences alleged against the petitioner are under Sections 493, 415, 417, 506(ii) and 312 of the Indian Penal Code. Of these offences, Section 493 is a non bailable offence. 3. The petitioner filed an application for anticipatory bail as B.A.No.59 of 2009 which was disposed of as per Annexure I order dated 3rd February, 2009. After a detailed discussion of the facts, a learned Single Judge of this Court came to the tentative conclusion which reads as follows: “On hearing both sides, even if the arguments in respect of Section 493 IPC is accepted, there is no plausible explanation for having committed the other offences. It is true that as per the allegations in the complaint and the records, the cohabitation was in May 2008, while the alleged victim's husband was alive and she could not lawfully married to the petitioner. On hearing both sides, I find that petitioner has a strong case of defence relating to offence under Section 493 IPC.” This court also considered the submission made by the learned BA No.2976/2009 2 public prosecutor that though offence under Section 312 IPC was alleged against the petitioner, on the basis of the materials available, the offence would be under Section 313 IPC, which is a non bailable offence. Bail Application No.59 of 2009 was disposed of directing the petitioner to surrender before the Magistrate Court concerned or before the Investigating Officer. It was also held that no further application for anticipatory bail will be entertained by this Court. 4. This Bail Application is filed stating that there is change of circumstances. It is stated that even after the disposal of the Bail Application No.59 of 2009, the offence under Section 312 of the IPC is not sought to be altered into one under Section 313 IPC. The offence alleged continues to be one under Section 312 of the Indian Penal Code, which is a bailable one. The petitioner apprehends arrest on an accusation of having committed offence under Section 493 IPC. Even after the observations in the order in Bail Application No.59 of 2009, the offence under Section 493 is not deleted. Therefore, the apprehension of the petitioner is well founded. 5. The learned counsel for the petitioner submitted that the defacto complainant had made a statement before the police that the miscarriage was with her consent. 6. In view of the change of circumstances and in view of the BA No.2976/2009 3 fact that offence under Section 312 IPC is not altered as one under Section 313 IPC and Section 493 is not deleted, I am of the view that anticipatory bail can be granted to the petitioner. There will be a direction that in the event of the arrest of the petitioner, the officer in charge of the police station shall release him on bail on his executing bond for Rs.25,000/- with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: a) The petitioner shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays, till the final report is filed or until further orders; b) The petitioner shall appear before the investigating officer for interrogation as and when required; c) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; d) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; e) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed to the extent indicated above. K.T.SANKARAN, JUDGE csl