IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 Bail Appl..No. 3913 of 2008() ----------------------------- (CRIME NO. 456/08 OF KADAVANTHRA POLICE STATION) APPLICANT/ACCUSED NO.2 --------------------------------------- THOMAS, S/O.KURIAN, PANDARATHUNDIYIL HOUSE, KADAVANTHARA, ERNAKULAM BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REP. BY THE C.I. OF KADAVANTHRA POLICE STATION. BY D.G.P. SRI. P.G. THAMPI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ---------------------------------------- Bail Appl.No. 3913 of 2008 ---------------------------------------- Dated this the 19th day of June, 2008 ORDER Petition for bail. 2. The alleged offences are under Sections 366, 376 , 342 and 34 of IPC. According to prosecution, petitioner, who is the driver of the first accused, committed offence under Section 366 IPC with intend that the de facto complainant a major aged 24 years may be compelled or is likely that she will be seduced or forced to have illicit intercourse with the first accused and for this purpose the petitioner had gone to the de facto complainant at the place where she was residing (under the care and protection of the first accused himself) and she was taken to the passport office and thereafter to the flat of the first accused where he was residing alone. 2. The first accused allegedly raped the de facto complainant and told her that her photographs were taken. She was made to stay there for about 2 days. Petitioner had arranged food during the stay, took her for a film with first accused and helped her to board the bus on return. When de facto complainant told the petitioner that she had found a lens in the bath room of the flat, the petitioner told her that there was nothing serious. 3. Learned counsel for the petitioner submitted that none of the statements made by the de facto complainant will reveal that the petitioner was aware that she will be subjected to any [B.A.No. 3913/08] 2 illegal activities by the first accused. It cannot be inferred from the statements or the materials available at present that the petitioner had the intention or knowledge that the victim was likely to be compelled or seduced to illicit intercourse by first accused. It is also submitted that the victim has not disclosed anything to petitioner to impart any intention or knowledge on the part of the petitioner regarding rape. It is submitted that he was totally unaware of any of the illegal activities as allegedly committed by first accused. 4. The petitioner is having two mentally challenged sisters and a paralised mother. He is having only a balance of Rs.500/-. He has been working only as a driver of the first accused and he was only obeying whatever instructions were given by his master from time to time. That is all what is revealed from the statement of the victim and according to learned counsel for the petitioner, unless there is evidence to indicate that the petitioner committed any act with the intention or knowledge that the girl is likely to be subjected to illicit intercourse with another person, he cannot be made liable for offence under Section 366 IPC. The petitioner is in custody from 13.5.2008 and, as per the submissions of the learned Director General of Prosecution himself the investigation will be completed within two weeks and hence it is submitted that no harm will be caused to the investigation by the release of the petitioner. In such circumstances, according to learned counsel for petitioner, the continued detention of the petitioner will amount to penalisation of the petitioner. [B.A.No. 3913/08] 3 5. This petition is vehemently opposed by the learned Director General of Prosecution. He read out certain passages from the case diary and explained the manner in which the offence was committed. He pointed out certain portions from the case diary which reveal that the petitioner had the knowledge of what was transpiring in the flat of first accused and he knew that the de facto complainant may be compelled or seduced to have illicit intercourse with first petitioner. He had made the victim to stay back all alone in the flat where first accused was staying alone, he had brought food for her, took her for film with first accused and all these would point to the intention and knowledge of petitioner, it is submitted. 6. It was also submitted that since he knew that the victim will have to be retained for a sufficiently long time he brought food also for her in advance. He was accompanying the first accused and the victim to the cinema theatre and had watched the movie in their company and all these will indicate the involvement of Petitioner in the activities of first accused, it is submitted. 7. Learned Director General of Prosecution argued that the case diary reveals that the petitioner had a star role in the whole activities of the first accused and but for him, it wold not have been possible to procure the girl so easily for the first petitioner. It is alleged that petitioner was working as the conscience- keeper of the first accused and if the petitioner is released on bail, the petitioner will tamper with evidence and aid the first accused to escape. It is submitted that the petitioner and first accused [B.A.No. 3913/08] 4 are involved in a series of cases of the very same nature and this is not the sole instance, but several cases are pending against the petitioner and the first accused. It is submitted by learned Director of Prosecution that several shocking instances of rape on even minors are revealed on investigation and public conscience is wounded by these types of activities of the accused and all these may be taken note of, while considering the bail application, it is submitted by learned Director General of Prosecution. He argued that petitioner may not be granted bail till the trial is over. 8. Heard both sides. I have gone through the case diary. At this stage, as argued by learned D.G.P. it cannot be said that the petitioner was only an innocent driver who was only acting under instructions of the master and brining children to the flat without knowing anything about what was transpiring in the flat. It is not possible at this stage to state that the ingredients of Section 366 IPC are not attracted. I am satisfied that there are several cases against petitioner and first accused and in case, the petitioner is released on bail, it is likely to peril the investigation as pointed out by learned Director General of Prosecution. Hence, I am not inclined to grant bail to the petitioner at this stage. Application is dismissed. K. HEMA, JUDGE. Krs.