IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 Bail Appl..No. 312 of 2009() -------------------------------------- CRMP.16/2009 of DISTRICT COURT, PATHANAMTHITTA. CRIME NO.907/2008 OF PANDALAM POLICE STATION .................... PETITIONER(S): ACCUSED NO.2 ------------------------- MANOJ JACOB , AGED 25 YEARS S/O. JACOB MATHEW, VALUVETTUMPARA PADINJAREMURIYIL HOUSE, CHURULIKODU PO, PATHANAMTHITTA. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): COMPLAINANT ------------------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= B.A. No. 312 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 27th day of January,2009 O R D E R Petition for anticipatory bail. 2. The alleged offence is under section 366 IPC. According to prosecution, petitioner (2nd accused) and two others, in furtherance of common intention, kidnapped a minor girl, aged 16 years and thereby committed the offence. 3. Learned counsel for petitioner submitted that as per the allegations of the prosecution itself, 1st accused's family members had made a marriage proposal for the alleged victim but her people asked them to wait. Thereafter, 1st and 2nd accused came in a motor cycle and kidnapped the girl on the same motor cycle. It is submitted that admittedly no sexual act was committed and the girl was not seduced to have sexual relationship with anybody and therefore, offence under section 366 IPC is not attracted. 5. Learned counsel for petitioner also pointed out that learned Sessions Judge has not given any reasons why anticipatory bail is refused to petitioner, whereas 3rd accused was granted anticipatory bail. The minor girl has no case that she was seduced or enticed by petitioner to go along with him and therefore, no kidnapping is involved. BA 312/2009 -2- 6. This petition is opposed. Learned Public Prosecutor submitted that the alleged victim is aged only 16 years and she was taken away from her parents by accused 1 and 2 jointly on the same motor cycle. It is true that the girl was not seduced to have any sexual relationship and medical report also would show that she did not have any sexual relationship. However, it cannot be said that there is no kidnapping, as alleged. It is also submitted that 1st accused who is having serious role than that of petitioner was granted bail on the same day of his surrender. 7. On hearing both sides, I find no special reason why anticipatory bail has to be granted to petitioner. If the arguments are accepted, it will only show that the child was taken away not for the purpose of seducing to have any sexual relationship. Even if the offence falling only under section 363 IPC, it is bailable offence and hence, anticipatory bail cannot be granted. However, 1st accused having been granted bail on the same day, there is no reason why petitioner is not granted the same relief. Therefore, petitioner may seek his remedy before the trial court itself by filing a petition under section 437 Cr.P.C. Hence, petitioner is directed to surrender before the Magistrate court concerned or before the BA 312/2009 -3- Investigating Officer without any delay and co-operate with the investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. With this direction, this petition is dismissed. K.HEMA, JUDGE. mn.