IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 Bail Appl..No. 375 of 2008() B ---------------------------- CRIME 314/07 OF KAYAMKULAM POLICE STATION PEITIONER/2ND ACCUSED -------------------------------------- PRASAD, CHANDRA BHAVANAM, KANDIYOOR, MAVELIKKARA, RESIDING AT MATTATHUKIZHAKKATHIL, PARAKODE P.O., PARAKODE. BY ADV. SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR) RESPONDENTS: COMPLAINANT ------------------------ 1. SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION. 2. PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR ADV.SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` B.A. No. 375 OF 2008 B ```````````````````````````````````````````````````` Dated this the 28th day of January, 2008 O R D E R Application for anticipatory bail. Petitioner is the 2nd accused in a crime registered alleging commission of offences punishable under Section 498 A and 376 IPC. The first accused is the husband of the de facto complainant. The de facto complainant is herself a law graduate. The marriage between A1 and the de facto complainant took place on 14.5.02. One child has been born in the wedlock also. The petitioner is related to the first accused. The crux of the allegations is that the first accused has a strained relationship with the de facto complainant as the demands of the first accused for money had not been met by his father-in-law ie, the father of the de facto complainant. The first accused, to avenge the father-in-law, had wanted the petitioner herein to commit rape on the de facto complainant. The first accused BA.375/08 : 2 : allegedly facilitated and the petitioner herein did allegedly commit rape on the de facto complainant on 30.3.07 at her residence. The allegation is that the first accused had brought the petitioner to the bedroom of the de facto complainant and he had gone out of the bedroom closing the doors leaving it to the petitioner to commit rape on the de facto complainant which he allegedly did. Even earlier on 7.10.06 the first accused had made a similar attempt to get some other unknown person to commit an identical crime but that did not succeed as the de facto complainant in due time escaped from the bedroom. This offence was committed on 30.3.07 but no prompt complaint was ever made. It is seen that a private complaint was filed only on 4.5.07 before the learned Magistrate. It was referred by the learned Magistrate to the police under Section 156(3) Cr.P.C. A crime has accordingly been registered. The petitioner has not been arrested so far. Investigation is in progress. The petitioner apprehends imminent arrest. BA.375/08 : 3 : 2. According to the learned counsel for the petitioner, the petitioner is absolutely innocent and false and vexatious allegations are raised by the de facto complainant to unnecessarily drag the petitioner into the matrimonial controversy between A1 and the de facto complainant. Anticipatory bail may be granted to the petitioner, it is prayed. 3. The learned Public Prosecutor submits that the investigation is in progress. Two witnesses, who had allegedly reached the scene of the crime, have asserted that the de facto complainant had shared the same story with them immediately after the occurrence. They are her sister- in-law and another person of the locality. According to her, she did not file a prompt complaint as she had advised to not to do the same by the relatives, considering her position and plight. The learned Public Prosecutor submits that further investigation is necessary to take a decision on the question whether the assertions of the de facto complainant supported by the allegations raised by the said two witnesses can be BA.375/08 : 4 : accepted or not. The petitioner has to be interrogated. The petitioner may not be permitted to arm himself with anticipatory bail at this stage, submits the learned Public Prosecutor. 4. I have considered all the relevant inputs. At this stage, I shall not embark on a detailed discussion on the acceptability of the allegations or the credibility of the data collected. The first accused has also not been arrested so far, submits the learned Public Prosecutor. Taking all the relevant circumstances into account, I am satisfied that the petitioner can be granted anticipatory bail subject to appropriate and strict conditions which shall ensure the interests of a fair, efficient and expeditious investigation. 5. In the result, this petition is allowed. Following directions are issued under Section 438 Cr.P.C in favour of the petitioner. i) Petitioner shall surrender before the learned Magistrate having jurisdiction at 11 a.m on 4.2.08. He shall BA.375/08 : 5 : be released on regular bail on condition that he executes a bond for Rs.50,000/-(Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. ii) The petitioner shall make himself available for interrogation before the investigating officer between 10 a.m and 5 p.m on 5.2.08 and 6.2.08. During this period, the investigating officer shall be at liberty to interrogate the petitioner in custody and take all necessary steps for the proper conduct of the investigation in this crime, including the conduct of a potency test. Thereafter, he shall so appear on all Mondays and Fridays between 10 a.m and 12 noon for a period of two months and subsequently as and when directed by the investigating officer in writing to do so. (iii) If the petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioner and deal with him in accordance with BA.375/08 : 6 : law, as if these directions were not issued at all. (iv) If he were arrested prior to 4.2.08, he shall be released from custody on his executing a bond for Rs.50,000/- (Rupees fifty thousand only) without any sureties, undertaking to appear before the learned Magistrate on 4.2.08. (R.BASANT, JUDGE) aks