IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Bail Appl..No. 6938 of 2008() ----------------------------- CRIME NO. 324/2008 OF KAZHAKKUTTOM POLICE STATION PETITIONER/ACCUSED NO.2:- ------------------------------ THANKACHY MATHEW,D/O.MATHAI, POIKA MELETHIL VEEDU, RAMANKUNNU MUKKU, KARAPURAM, KUNDARA PANCHAYAT,KOLLAM. BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, AT THE HIGH COURT OF KERALA AT ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 6938 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of November,2008 O R D E R Petition for bail. 2. The alleged offences are under sections 363 and 366A IPC. According to prosecution, petitioner (A2) was running a care home for girls who are orphans and financially backward. The 1st accused was helping 2nd accused for running the care home. On 6-10-2008, an inmate of the care home who is aged 15 years and studying X th Standard was found missing. Her mother was informed and she gave a complaint before the police and it was revealed that the child was subjected to sexual intercourse by 1st accused who took her away under the pretext of entrusting her with her father. The victim's father and mother were residing separately, since their relationship was strained. The child was taken to the care home by her mother. The child was also traced out later and she gave a statement to the police. A crime was registered on the basis of a statement given by the victim's mother on 7-10-2008 at 4 p.m. 3. Learned counsel for petitioner submitted that petitioner was running an institution by name Karunalayam for the welfare of financially poor girls and orphans. The alleged victim in this case is one of the inmates of the institution, as BA 6938/08 -2- entrusted by her own mother who was living separately from her husband. The 1st accused used to come to Karunalayam for helping petitioner for running of the institution by supplying vegetables, etc. Later, petitioner found that 1st accused had developed some intimacy with the alleged victim. He was told not to continue the relationship. This was not to the liking of 1st accused. He continued to contact the victim over a mobile phone, which was handed over to the victim without knowledge of petitioner. 4. Later, as persuaded by 1st accused and under his compulsion, the girl went along with him on 6-10-2008. On finding that the girl was missing, petitioner made a search for the child and later she herself gave a statement before the police on the same day in the night at 9 p.m., after failing in all her attempts to trace the girl. In the order of learned Sessions Judge, it has been observed that “It is seen from the records that the above case was originally registered as per Crime No.324/08 on 07-10-08 for women missing on the basis of the statement given by the present petitioner who was conducting an institution by name Karunalayam at Chempazhanthy.......” 5. Thus F.I.R. itself was registered on the basis of BA 6938/08 -3- petitioner's statement. Later, it is understood that petitioner who is the complainant was transformed into the accused. It is also made to appear that crime was registered on the basis of a statement given by mother of the victim. This was done at the instance of certain people with whom she had some difference of opinion. Petitioner is absolutely innocent of the allegations made and she was arrested on 8-10-2008 and she is in custody for the past 34 days, it is submitted. 6. This petition is opposed. Learned Public Prosecutor submitted that statement of the alleged victim is available in the case diary which clearly shows that the mobile phone was supplied to her by petitioner and at her connivance, she was contacting 1st accused and both the accused were cheating her in collusion with each other. The 1st accused had taken away the victim promising her that she will be entrusted to her father but under this guise, she was taken to various places and she was subjected to sexual intercourse by him without her consent. The act was committed with the knowledge and connivance of 2nd accused and hence, this is not a fit case to grant bail, it is submitted. It is also submitted that 1st accused is absconding and he could not be arrested so far. After committing the offence, 1st BA 6938/08 -4- accused abandoned the child and her father took her from Kasargod bus stand, on receiving her phone call, it is submitted. 7. On hearing both sides and on considering contentions raised, I have gone through the case diary. The statement of petitioner is available in the case diary and its contents more or less support the case now advanced by petitioner. It is seen from the statement that petitioner was objecting to the relationship between 1st accused and the victim and that she had given a complaint to the police. It is also seen from her statement that on the same day of missing at 9 p.m. she had given a statement to police. Though learned Sessions Judge also noticed that the crime was registered on the basis of a statement given by petitioner herself, such a statement is now found missing in the file. Instead a statement given by the victim's mother on the next day on 7-10-2008 at 4 p.m. is shown as First Information Statement, based on which, crime was registered. 8. It is also seen from the statement of the victim herself that the mobile phone, which she was using to contact 1st accused, was that of the 1st accused himself, though she would allege that the said phone was handed over by petitioner to her. Statement of the victim itself reveals that petitioner had objected BA 6938/08 -5- to the relationship between the victim and 1st accused and she has also threatened that her mother and police will be informed, if they continued the relationship. On considering all the above facts and circumstances, I find that there is no justification in detaining petitioner any more in prison and she can be granted bail. 9. Hence, petitioner shall be released on bail on her executing a bond for Rs.25,000/- with two solvent sureties each for the like amount to the satisfaction of the learned Magistrate, on the following conditions:- 1) Petitioner shall report before the Investigating Officer as and when directed. 2) Petitioner shall not intimidate or influence any witness or tamper with evidence or commit any offence while on bail and in case breach of this condition, bail is liable to be cancelled. This petition is allowed. K.HEMA, JUDGE. mn.