IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 Bail Appl..No. 8111 of 2007() ----------------------------- CRLMC.2160/2007 of D.C. & SESSIONS COURT, ERNAKULAM CRIME NO.1140/07 OF KOTHAMANGALAM POLICE STATION .................... PETITIONERS: ACCUSED 2 & 3: ------------------------------- 1. C.P.JOY, AGED 41 YEARS, S/O.PAULOSE, CHENNOTH HOUSE, THRIKKARIYOOR P.O., KOTHAMANGALAM, ERNAKULAM. 2. MONCY KURIAKOSE, AGED 43, S/O.PAILY KURIAKOSE, CHENNOTH HOUSE, CHEMMANAD, VARIKKOLY P.O., PUTHENCRUZ, ERNAKULAM. BY ADV. SRI.K.V.SABU RESPONDENTS: COMPLAINANT: ------------------------- CIRCLE INSPECTOR OF POLICE, KOTHAMANGALAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY D.G.P. SRI. P.G. THAMPI. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 8111 OF 2007 ------------------------------------------------- Dated this the 3rd day of January, 2008 ORDER Application for anticipatory bail. The petitioners are accused 2 and 3. Altogether, 8 accused persons have been arrayed as accused now. Initially, the crime was registered under the caption “girl missing”. Later, allegations under Secs.366A, 343 and 376(2)(g) of the IPC have been raised. 2. The alleged offences have been committed in respect of a girl who had crossed the age of consent (16 years) and who has not completed the age of 18 years. She is a minor in law. The minor appears to have gone along with some of the accused persons who had allegedly used her for sexual intercourse. There were more than one person who indulged in sexual intercourse with her. The prosecution alleges that such intercourses were rape. B.A. No. 8111 OF 2007 -: 2 :- 3. The learned counsel for the petitioners submits that the allegations are totally false. Even if the entire allegations were accepted, it is very evident that the girl, who was above the age of consent, had had sexual intercourse with many persons with consent. The learned counsel relies on the change of versions of the girl at various stages of the investigation to press home his contention that it was not a case of rape and was a case of consensual sexual intercourse by the girl who was above the age of consent. 4. The learned Director General of Prosecutions, who has himself appeared in this case, submits that even if the entire defence of the accused were accepted, they must be held to be liable for the offence under Sec.366A of the IPC. Satisfactory allegations on that count have been raised against the petitioners, urges the learned D.G.P. Even assuming that the minor girl had gone with the accused who took her along with them for the purpose of sexual intercourse with her consent, they must be held to have committed the offence under Sec.366A B.A. No. 8111 OF 2007 -: 3 :- of the IPC, contends the learned D.G.P. 5. It is very evident that the girl was a minor girl above the age of consent. The materials clearly show – notwithstanding the prevarication of the girl in question, that she had gone with the petitioners for the purpose of consensual sexual intercourse with them for consideration. I find merit in the contention of the learned D.G.P. that, at any rate, allegations under Sec.366A of the IPC must be held to be validly raised. I shall scrupulously avoid any detailed discussions or expression of opinion on the acceptability of the allegations or the credibility of the data collected. Suffice it to say that the indications presently available suggest to me that the allegations under Sec.366A of the IPC cannot be said to be not well founded. I am, in these circumstances, satisfied that the petitioners are not entitled for anticipatory bail. They must resort to the ordinary and normal course of appearing before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary and usual course. B.A. No. 8111 OF 2007 -: 4 :- 6. In the result, this bail application is dismissed; but with the observation that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and seeks bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge