IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 Bail Appl..No. 1236 of 2008() ----------------------------- CRIME NO. 65/08 OF MARARIKULAM POLICE STATION PETITIONER/2ND ACCUSED --------------------------------------- INDRAVALLY, AGED 45, W/O.LATE SOMAN, KURUPPUPARAMBU, POKLASSERY, KANICHUKULANGARA P.O., ALLEPPEY (DIST). BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, MARARIKULAM POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 1236 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2008 O R D E R Application for anticipatory bail. The petitioner faces allegations under Sections 498A and 306 r/w. 34 I.P.C. Altogether there are two accused persons. Petitioner is the second accused. She is the widow of the deceased uncle of the first accused. The first accused had married earlier. His former wife also, allegedly unable to stand his cruelty, had committed suicide by jumping in front of a running train. Later the first accused had married again and the deceased was the wife in the second marriage. 2. It is alleged that the petitioner and the first accused shared an illicit relationship. She was residing in the house along with the spouses. The allegation is that they were indulging in illicit sexual relationship and they were caught red handed by the deceased wife. There are quarrels and disagreement on this score and the petitioner was allegedly left at another house. The B.A.No. 1236 of 2008 2 case of the prosecution is that the accused persons insisted that the petitioner/A2 must resume her residence in the house of the spouses and the deceased wife, unable to stand the cruelty heaped on her by both the accused persons, ultimately committed suicide. She had left a suicide note, in which no specific allegations as such are made of any matrimonial cruelty on the part of the petitioner or the first accused. The first accused was assaulted by some local people evidently on account of his improper behaviour to his wife and on account of his insistence that the petitioner must return to the common house. The suicide note only shows that the wife had not planned the attack on the husband and he had misunderstood her and therefor she was committing suicide. 3. The learned counsel for the petitioner submits that the petitioner is at any rate innocent of the allegations levelled against her. The suicide was committed at the time when the petitioner was not available in the house. Assault on the husband/A1 also took place at a time when she was not there. In these circumstances the petitioner B.A.No. 1236 of 2008 3 does not deserve to endure the trauma of arrest and detention. She may be granted anticipatory bail, it is prayed. 4. The learned Prosecutor opposes the application. He submits that in any view of the matter, it is very evident that cruelty of the worst variety was directed against the deceased by the two accused persons. He relies on the case diary statements of several witnesses in support of this assertion. Notwithstanding the fact that on the date of suicide the petitioner was not available in the house, she cannot avoid culpability for the matrimonial cruelty directed against the deceased, which had ultimately prompted her to commit suicide. 5. The case diary has been placed before me for my perusal. I have perused the same in detail. Having considered all the relevant inputs, I am unable to find any features in this case, which would justify the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioner. This I agree with the learned Prosecutor, is a fit case where the petitioner must resort to the ordinary and normal procedure of appearing before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in B.A.No. 1236 of 2008 4 the ordinary course. Needless to say, she will be entitled to request the learned Magistrate considering the application for regular bail to invoke the compassion in favour of the weaker section under Section 436 Cr.P.C. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously. (R. BASANT) Judge tm