IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 14TH OCTOBER 2009 / LIST ASWINA 1931 Bail Appl..No. 5878 of 2009() -------------------------------------- CRIME NO.324/2009 OF CHANDERA POLICE STATION, KASARAGOD PETIONERS/ACCUSED 1 & 2: -------------------------------------------- 1. NISHAN, S/O.NAZIMUDHEEN, `MOON LIGHT' HOUSE, EDAVA VILLAGE, EDAVA P.O., THIRUVANANTHAPURAM. 2. ROSIYA, W/O.NAZIMUDHEEN, `MOON LIGHT' HOUSE, EDAVA VILLAGE, EDAVA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SHABU SREEDHARAN RESPONDENT/COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE S.I.OF POLICE, CHANDERA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. SRI. M.S. BREEZ, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 14/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 5878 of 2009 ------------------------------------ Dated this the 14th day of October, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No.324/2009 of Chandera Police Station, Kasaragod. 2. The offences alleged against the petitioners are under Sections 365, 366, 376, 417 and 493 read with Section 34 of the Indian Penal Code. 3. The petitioners belong to Varkala. The first petitioner is an engineering student. At the time of alleged incident, he had not attained the age of 21 years. He fell in love with the de facto complainant. The de facto complainant belongs to Kasaragod. Their relationship started, according to the de facto complainant, when she was studying in the 9th standard and the first petitioner was studying in the 10th standard. Later, the de facto complainant was married to a man, who was employed in Malaysia. Even thereafter, the relationship between the de facto B.A. No. 5878 /2009 2 complainant and the first petitioner continued. 4. It is also alleged that the first petitioner asked the de facto complainant to come to Payyannur. Under the pretext of going to a house, the first petitioner took the de facto complainant on a motor bike. Instead of going to the place where they decided to go, the first petitioner took her to Kannur Railway Station. Thereafter, she was taken to Palakkad, Bangalore and Hydrabad. In Hydrabad, they were residing in a flat. In the meanwhile, the mother of the first petitioner, who is the second petitioner herein, filed a Habeas Corpus petition before the High Court stating that her son was missing. The de facto complainant was the 4th respondent in the Habeas Corpus petition. The police found out the de facto complainant and the first petitioner. They were produced before the High Court. The de facto complainant stated before the Division Bench that she was not willing to go with her relatives and she wanted to marry the first petitioner. The first petitioner was not willing to take the de facto complainant. According to the de facto complainant, under the influence of his mother, the second petitioner, the first B.A. No. 5878 /2009 3 petitioner expressed his desire to go with the mother. 5. It is further alleged by the de facto complainant that the second petitioner assured her that on the first petitioner attaining the age of 21 years, he would marry the de facto complainant. It is stated that this assurance was given only to escape from the criminal action that may be taken by the police. 6. The de facto complainant believed the words of the second petitioner. On the first petitioner attaining the majority, the de facto complainant requested the second petitioner to conduct the marriage between the first petitioner and the de facto complainant. But the second petitioner refused. She stated that the first petitioner is an engineering student and a good career awaits him. 7. It is alleged by the de facto complainant that she was subjected to forced sex, while she was taken to various places by the first petitioner. It is also alleged that she was being locked in the room whenever the first petitioner had gone out. 8. In the nature of the allegations levelled against the petitioner, I do not think that the first petitioner is entitled to the B.A. No. 5878 /2009 4 discretionary relief under Section 438 of the Code of Criminal Procedure. Custodial interrogation of the first petitioner is necessary in the case. If anticipatory bail is granted to the first petitioner, it would adversely affect the smooth investigation of the case. 9. However, the position is different in so far as the case relating to the second petitioner is concerned. The allegation is that she committed the offence under Section 420 of the Indian Penal Code. In the facts and circumstances of the case, I am of the view that anticipatory bail can be granted in favour of the second petitioner. 10. Accordingly, there will be a direction that in the event of the arrest of the second petitioner, the officer in charge of the police station shall release her on bail on her executing a bond for Rs.25,000/- with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: A) The second petitioner shall appear before the investigating officer for interrogation as and when required; B.A. No. 5878 /2009 5 B) The second petitioner shall not try to influence the prosecution witnesses or tamper with the evidence. C) The second petitioner shall not commit any offence or indulge in any prejudicial activity while on bail. D) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. For the aforesaid reasons, the Bail Application is dismissed in so far as it relates to the first petitioner and it is allowed, in the manner indicated above, in so far as it relates to the second petitioner. K.T. SANKARAN, JUDGE scm