IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Bail Appl..No. 7487 of 2008 ------------------------------------- (CRIME NO. 582/2008 OF NADAPURAM POLICE STATION) .............. PETITIONER/ ACCUSED: ----------------------------------- LINEESH.N.P., S/O.LATE KANARAN, AGED 30 YEARS, NELLIYULLA PARAMBATH (HOUSE), AROOR P.O., KAKKATTIL VIA., VATAKARA TALUK, KOZHIKODE DIST. BY ADV. SRI.SAJEEVAN KURUKKUTTIYULLATHIL. RESPONDENT/ COMPLAINANT: --------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, NADAPURAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.S. SIVA KUMAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13/01/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. K.HEMA, J. ------------------------------ B.A. No.7487 OF 2008 ------------------------------ Dated this the 13th day of January, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 420 and 376 of I.P.C. According to prosecution, petitioner, who is working as a police constable has promised to marry defacto complainant and she was subjected to sexual intercourse by him on several occasions from 2005 till 2008. After he obtained the job also, this continued and petitioner informed defacto complainant on 15.09.2008 that his relatives are compelling to marry another girl and requested her not to compel him to marry her. Therefore, a private complaint was filed, based on which a crime was registered. 3. Learned counsel for petitioner submitted that a reading of the complaint will show that petitioner has not committed any rape on her as defined under the relevant section. Sexual activities were allegedly carried on, not on compulsion but, as per the allegations she was obliging the petitioner, who promised to marry her. He also relied upon a B.A.No.7487 of 2008 2 decision reported in Deelip Singh alias Dilip Kumar Vs. State of Bihar (2005 SCC (Crl.) 253) to argue that the remedy of the defacto complainant, if any, is only to get damages for breach of promise and that offence under section 420 and 376 will not lie against petitioner. 4. It is also submitted that consent has a different connotation and willing submission on promise to marry will not constitute consent as required under Section 375 of I.P.C. as held by the Supreme Court in the decision cited above. It is submitted that petitioner is working in the police department and if petitioner is remanded he is likely to lose his job on the nature of allegations stated in the complaint. 5. Learned Public Prosecutor submitted that there is a promise to marry and defacto complainant subjected to sexual intercourse by petitioner for a very long time and now he has withdrawn from his promise. It is not a fit case to grant anticipatory bail, it is submitted. On hearing both sides and on considering the submissions made by learned Public Prosecutor and the facts, I find that it may not be proper to grant anticipatory bail. B.A.No.7487 of 2008 3 Petitioner is at liberty to take all the contentions before the Magistrate court concerned at the time of filing petition under Section 437 Cr.P.C., if he is so advised, in which event learned Magistrate shall consider the same and dispose of the bail application on merit, in accordance with law without any delay. It is however made clear that dismissal of petition for anticipatory bail is not normally a ground to reject a petition for bail, if the Magistrate court is satisfied that there are grounds to allow the application. The consideration for granting anticipatory bail and consideration for granting bail are different. If the offence is not attracted in the light of the Supreme Court decision, this contention can be raised before the Magistrate court in a petition under Section 437 Cr.P.C., if any. The order in the petition shall be passed untrammelled by any of the observations made by this court on facts. The petition is disposed of accordingly. K.HEMA, JUDGE pac