IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 28TH AUGUST 2008 / 6TH BHADRA 1930 Bail Appl..No. 4967 of 2008() ----------------------------- CRIME NO.219/08 OF KODANADU POLICE STATION PETITIONER : 2ND ACCUSED; ----------------------------- VARGHESE GEORGE, S/O.GEORGE MATHEN, KOTTUPALLY HOUSE, THADIYOOR, AYROOR, PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.ARUN.B.VARGHESE RESPONDENTS: COMPLAINANT: ------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KODANADU POLICE STATION, PERUMBAVOOR. BY PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.4967 of 2008 ----------------------------------------- Dated this the 28th August, 2008 O R D E R This petition is for bail. 2. The alleged offences are under Sections 376, 313 and 506 (1) of Indian Penal Code. According to prosecution, on 12.2.2008, the first accused, with intention to commit rape on the de facto complainant, gave lime juice containing intoxicating drug to her and when she became unconscious, he took her nude photographs. Threatening her by showing the photographs, he committed rape on her on 13.2.2008 and on subsequent days. She became pregnant and she approached the first accused to get the pregnancy aborted. She was sent to the house of the second accused, who is the petitioner, for arrangement of miscarriage and miscarriage was conducted. Thereafter, on a complaint filed by the de facto complainant, a crime was registered under Sections 376, 313 and 506(1) of Indian Penal Code. 3.Learned counsel for petitioner submitted that the First Information Statement is totally silent about any involvement of the petitioner with the crime. A reading of the same will show that the first accused had taken the de facto complainant to the house of the second accused, when his father, mother and two children alone BA.4967/08 2 were there in the house and the petitioner was absent in the house. The de facto complainant introduced herself as the daughter of the first accused's brother and she was allowed to stay in the house for vacation as requested. 4. Thereafter, first accused's daughter was also sent to the petitioner's house, on 13.5.2008. As per the contents of the First Information Statement, the first accused's daughter was informed by her father that the de facto complainant was in love with one Mahesh and she became pregnant. On the same day, both of them went to the doctor and conducted a test for pregnancy and the pregnancy of the de facto complainant was confirmed. On the next day, on 14.5.2008, abortion was conducted and at that time two ladies also went along with the de facto complainant. On 16.5.2008, the first accused, de facto complainant and his daughter came back and as instructed by the first accused, the de facto complainant and his daughter went to Muringoor and they reached there at about 8.30 PM. She went to Muringoor only to give an impression to her family members that she was at the retreat centre, but she did not go inside the retreat centre, since the gate was locked. From Muringoor, she made a call to her house stating that she is coming back from Muringoor and reached the house at 10.30 PM. The de facto complainant thereafter lodged the complaint. BA.4967/08 3 5. In the meantime, a complaint had been lodged stating that the de facto complainant was missing and therefore, she was taken to Kodanad police. She was thereafter taken to the Magistrate Court also. But, she did not state anything regarding the miscarriage, rape etc. at that time. 6. According to learned counsel for petitioner, the petitioner is working in the defence and he knows first accused. Petitioner is working at a place away from his residence and he was not even present in the house when de facto complainant came to his house introducing as first accused's niece. In the First Information Statement itself it is stated that he was not present in the house. It is also clear from the First Information Statement that the de facto complainant herself wanted the miscarriage, since her marriage was fixed and her family members had started inviting people from 11.5.2008 onwards. So, she wanted the miscarriage and help was sought for from first accused who was allegedly responsible for the pregnancy. 7. Therefore, it cannot be said that the miscarriage was conducted under any compulsion and hence, offence under Section 313 IPC will not be attracted. There is no element of any compulsion from the part of the petitioner, even if the entire prosecution case is accepted, it is submitted. If at all the entire case is accepted, the allegations may attract only offence under Section BA.4967/08 4 312 IPC, which is a bailable offence. It is also brought to my notice that petitioner's daughter's marriage was fixed to be held on 1.6.2008 and it is highly improbable that the petitioner will be a party to this sort of an offence which was allegedly committed just a few days prior to this, it is submitted. 8. This petition is opposed. Learned Public Prosecutor submitted that in the nature of the allegations made, it is not a fit case to grant anticipatory bail. It is also submitted that the petitioner's involvement is clearly indicated in the case diary. However, he conceded that as per the First Information Statement, petitioner was not present in the house when the de facto complainant went to his house and petitioner was not implicated at the time of lodging the complaint. But, subsequently he came to the house and this fact is revealed from the statement given by his own relatives and parents. It is also revealed from the case diary that he himself had gone to the hospital and arranged his two of his relatives to accompany the de facto complainant to conduct the miscarriage. It is also submitted that as per the further statement of the de facto complainant, she had told the petitioner that she was impregnated by the first accused while he threatened her asking to obey what he said. All these indicate that there was compulsion for conducting miscarriage. BA.4967/08 5 9. It is submitted by learned counsel for petitioner that the petitioner is still working in the defence and even going by the allegations in the complaint and the entire case diary, the petitioner had absolutely nothing to do with the offence of rape. He may be faced any consequence, in respect of offence under Section 376 IPC, it is submitted. 10. On hearing both sides and on going through the case diary, particularly the First Information Statement and the submissions made on both sides, I find that it may not be quite fit to grant anticipatory bail. However, the petitioner may surrender before the Magistrate Court concerned and in case he files an application for bail, offence under Section 312 IPC is attracted in this case, instead of offence under Section 313 for purpose of bail application. It is also made clear that the prosecution does not have a case that offence under Section 376 IPC is committed by the first accused, in furtherance of common intention of the petitioner as well. Hence, keeping these facts in mind, bail application, if any filed, shall be disposed of by learned Magistrate, as expeditiously as possible. This petition is disposed of accordingly. K.HEMA, JUDGE vgs.