IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Bail Appl..No. 579 of 2009() ---------------------------------------- (CRIME NO.832/2007 OF KASARGODE POLICE STATION) PETITIONERS/ACCUSED NOS. 4, 6 & 7: -------------------------------------------------------- 1. SIYAD K.H., AGED 30 YEARS, S/O.HANEEFA, KARATTUVELIL HOUSE, ARUVITHARA, ERATTUPETTA, KOTTAYAM DISTRICT. 2. NISSAR, AGED 48 YEARS, S/O.KOCHUTHAMBY, PARAKKAL HOUSE, ARUVITHARA, ERATTUPETTA, KOTTAYAM DISTRICT. 3. SUBAIDA, AGED 43 YEARS, W/O.NISSAR, PARAKKAL HOUSE, ARUVITHARA, ERATTUPETTA, KOTTAYAM DISTRICT. BY ADV. MR.JAWAHAR JOSE RESPONDENT(S): STATE: ---------------------------------------- THE STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, KASARAGODE POLICE STATION, WHO IS REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/02/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= B.A. No. 579 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 11th day of February, 2009 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 120B, 493, 495, 496, 419, 420 read with section 34 IPC. According to prosecution, 1st accused married earlier, but he deceived de facto complainant by intentionally inducing her to marry her by suppressing earlier marriage and marriage was solemnized on 15-2-2004 between 1st accused and de facto complainant. Petitioners who are accused 4, 6 and 7 personated themselves as father, mother and brother-in-law of 1st accused and all of them in furtherance of common intention committed various offences and also hatched a criminal conspiracy to commit the offences. 3. Learned counsel for petitioners submitted that parties are Muslims. Muslim law permits second marriage and hence, the marriage between the 1st accused and de facto complainant cannot be said to be an unlawful marriage. For attracting section 493 IPC, the marriage between de facto complainant and 1st accused has to be an illegal marriage and then alone the offence will be attracted as laid down by a decision of a Full Bench of this Court reported in Moideenkutty Haji & Others V. Kunhikoya & Others (1987(1) KLT 635). In this case the BA 579/09 -2- marriage was conducted in accordance with the religious rites and the de facto complainant has no case that no legal marriage was conducted or that her marriage was illegal and therefore the offences are not attracted, it is submitted. It is also submitted that section 496 IPC will not be attracted for the same reasons. Petitioners who are accused 4, 6 and 7 are not benefitted by the marriage and hence, none of the non bailable offences alleged would not lie against petitioners and they may be granted anticipatory bail, it is submitted. 4. This petition is strongly opposed. It is submitted that de facto complainant and family members were cheated by fraudulent representation and there was no free consent for marriage and hence, marriage is not a legal marriage. Only because certain customary rites are undergone, a marriage will not become lawful. It is not correct to say that sections 493 and 496 IPC will not be attracted, it is submitted. 5. That apart all the offences are committed by accused in furtherance of common intention. As per the allegations, petitioners personated themselves as the relatives of the 1st accused in furtherance of common intention with the 1st accused and committed the offence of cheating. They have intentionally BA 579/09 -3- induced de facto complainant and family members to go through the marriage for which the de facto complainant would not have agreed, but for the deception. Therefore, offence under sectin 420 IPC also is clearly attracted and on the facts of this case, this is not a fit case to grant anticipatory bail, it is submitted. 6. On hearing both sides, I find that considering the serious nature of the allegations made, this is not a fit case to grant anticipatory bail. Petitioner may move the concerned court for bail under section437 Cr.P.C., if so advised, and the contentions raised can be considered by the said court and hence, I am not making any specific observations relating to the rival contentions, since it may prejudicially affect either of the parties. In my view this is not a fit case to grant anticipatory bail. Petitioners are bound to co-operate with the investigation. It is needless to say that considerations for grant of anticipatory bail are different from considerations for grant of bail under section 437 Cr.P.C. The learned Magistrate may consider the rival contentions on merit and dispose of bail application, if any, filed in accordance with law. 1) Petitioner is directed to surrender before the Investigating Officer without any delay and co- BA 579/09 -4- operate with the investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. 2) No further application for anticipatory bail by petitioner in this crime will be entertained by this Court, since on the facts in this case, this Court ordered that this is not a fit case to grant anticipatory bail and any order to the contrary in any subsequent anticipatory bail application will amount to review, which is impermissible in law. The petition is dismissed. K.HEMA, JUDGE. mn.