IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 Bail Appl..No. 3701 of 2008() ----------------------------- CRIME NO.443/2008 OF KOTTIYAM POLICE STATION, TRANSFERRED TO ATTINGAL POLICE STATION AS CRIME NO.308/2008 PETITIONER: ----------------- AMMATHAYA MAHAMAYA DEVI, AMMATHAYA MAHAMAYA DEVI TEMPLE, KIZHAVOOR CHERRY, MUKATHALA. P.O, KOLLAM. (SOLE ACCUSED IN CR.NO.443 OF 2008 OF KOTTIYAM POLICE STATION NOW TRANSFERRED TO ATTINGAL POLICE STATION AS CRIME NO.308/08.) BY ADV. SRI.T.R.ASWAS RESPONDENT: ------------- STATE OF KERALA, REP.BY S.I.OF POLICE, ATTINGAL POLICE STATION, THIRUVANANTHAPURAM DIST. BY DIRECTOR GENERAL OF PROSECUTION SRI P.G.THAMPI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.No. 3701 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2008 O R D E R Application for anticipatory bail. 2. A crime is registered against the petitioner and others suo motu by the police on 28-5-2007 on the allegation that the petitioner's daughter who was residing in the petitioner's brother's house was raped by petitioner's nephew and she was impregnated while she was only 14 years of age. This fact was concealed by the petitioners, her present and former husband and her brother. It is also alleged that the victim was made to shift her residence somewhere. A crime was registered under sections 376, 109 and 34 IPC. 3. The learned counsel for the petitioner submitted that the petitioner is a lady engaged in spiritual activities like poojas, prayers etc. and hence she requested her brother and sister-in-law to look after her minor child who had attained puberty, since it was difficult to bring her up at the place of residence of petitioner. The child, accordingly, was taken to the petitioner's brother's house and the understanding was that she will be sent to school and her education will be continued on the expenses to be met by the petitioner. It was also decided that after completion of studies, BA 3701/08 -2- she would be given in marriage to petitioner's brother's son. But, it so happened that during her stay, the petitioner's brother's son fell in love with the petitioner's daughter and she was impregnated. The petitioner and the petitioner's brother are residing in different districts at a distance of about 60 k.m. away. 4. It is argued that the petitioner cannot be implicated for an offence under sections 376, 109 read with section 34 IPC, especially in the light of the decision laid down in the decision of the Supreme Court reported in Ranganayaki V. State by Inspector of Police ((2004)12 SCC 521), as per which, in a case of this nature, on facts, an offence under section 109 will not be prima facie attracted. 5. Learned Director General of Prosecution vehemently opposed the application. It is pointed out that this is a case where a minor girl is raped and considering the age, even if there is consent, offence is attracted, going by the language of section 376 IPC. The offence was committed by the willing, voluntary support of the petitioner and with her connivance and as per the case diary and the investigation so far conducted, the petitioner and her family members had conducted betrothal of the minor girl with the petitioner's nephew on 9-4-2008 and allowed the victim and the nephew to live together. BA 3701/08 -3- 6. Learned Director General of Prosecution vehemently opposed the application. It is argued that the petitioner is originally named Vijayakumari and she is cheating the public by calling herself as Ammathaya Mahamaya Devi and she represent herself as a Goddess. She is conducting poojas and obtaining huge money, gold ornaments from the public. There is a public move against the petitioner against the fraudulent acts and several persons in the society are cheated by the petitioner etc. But, the general allegations are not contained in the First Information Statement. As far as this court is concerned, there is a citizen of India before me against whom a crime is registered on the basis of a complaint. The question is whether the offence alleged is committed or not and if the facts and circumstances warrant grant of the relief or the refusal of the same. 7. On hearing both sides and going from the case diary, it is clear that this is a case where a mother entrusted her minor child to her own brother and sister-in-law for educating her and she was allowed to reside with him. It is also clear that the petitioner and her family members decided that the child should be given in marriage to the petitioner's nephew and hence they conducted the betrothal also. Though the betrothal was at a sufficiently early age of the child, it is evident that no marriage was conducted. As per the allegations, the petitioner is residing far away BA 3701/08 -4- from the residence of the petitioner's brother with whom the child was residing. 8. On the facts and circumstances of this case, as per the submissions made, the petitioner herself is a victim, her only minor daughter being impregnated by her own nephew at the age of 14 years. The allegations of connivance, etc. are levelled against her, since the betrothal was conducted. But it is disclosed from the case diary itself that the understanding was that the child will complete her studies and only after completion of studies she will be given in marriage to the petitioner's nephew. But unfortunately, even before she completed the studies, while she was doing her IX th Standard, she was impregnated, against all the expectations of the family members, it is submitted. 9. On the facts and circumstances of this case, I find that the petitioner cannot be treated a par with the person who actually committed an offence under section 376 IPC and she may not be made to face the same consequences by refusing anticipatory bail in an offence under section 376 IPC. Being a non-bailable offence, it is likely that the petitioner will be arrested. Learned Director General of Prosecution pointed out that there is a public protest against the petitioner and the public is agitating about the activities of the petitioner. The learned counsel for the petitioner BA 3701/08 -5- pointed out that it is an off-shoot of a political rivalry between two groups and there is a move by the DYFI activists against the sanyasis and the people who are engaged in spiritual activities. It is submitted that the petitioner accepted a name Ammathaya Mahamaya Devi and notifications were published in accordance with law. It is submitted that the petitioner has constructed a temple in her name and in the festival, B.J.P. Leader Sri O.Rajagopal the then Minister had inaugurated the festival and hence the D.Y.F.I. workers are now against the petitioner. 10. Taking all these facts and circumstances, I find that suitable directions have to be issued. In the result, the following order is passed. 1) The respondent is directed to release the petitioner in the event of her arrest, if any, on her executing a bond for Rs.25,000/- with two solvent sureties each for the like amount to the satisfaction of the arresting officer on condition that she shall co-operate with the investigation and make herself available for interrogation as and when directed by the Investigating Officer. 2) If the petitioner is required for the purpose of interrogation, notice as contemplated under section 160 Cr.P.C. shall be given to her, giving sufficient time to comply with the direction therein. BA 3701/08 -6- 3) In case petitioner refuses to co-operate with the investigation or fails to make herself available for interrogation, it is made clear that this order is liable to be cancelled. This application is allowed as above. K. HEMA, JUDGE. mn.