IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 Bail Appl..No. 6716 of 2008() ----------------------------- CRMP.2477/2008 of DISTRICT COURT, KOTTAYAM CRIME NO. 421/2008 OF CHINGAVANAM POLICE STATION PETITIONER/ACCUSED -------------------------------------- GOPALAKRISHNAN, AGED 45 YEARS, S/O.GOVINDHA WARRIER, GOKUL SADHANAM, ITHITHANAM, MALAKUNNAM, KURICHY, KOTTAYAM. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): STATE -------------------- SUB INSPECTOR OF POLICE, CHINGAVANAM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. AMJAD ALI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A. No.6716 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November,2008 O R D E R Petition for anticipatory bail. 2. According to prosecution, on 8-10-2008 at 4. 15 p.m. while a girl minor aged six years watching television in the house of petitioner, petitioner sexually assaulted her by fingering. Petitioner and the victim are neighbours. Mother of victim gave First Information Statement and the victim was examined in a private hospital on 10-10-2008. 3. Learned counsel for petitioner submitted that offence under section 377 IPC will not be attracted in a case of “fingering”, going by the language of section 377 IPC. Offence under section 377 IPC requires carnal intercourse and in the absence of it, if at all the allegations are accepted, petitioner can be said to have committed only offence under section 354 IPC, which is a bailable offence. Hence, petitioner may be granted anticipatory, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that considering the nature offence, it is not a fit case to grant anticipatory bail. 5. On hearing both sides, considering the nature of BA 6716/08 -2- allegations, I am not inclined to grant anticipatory bail in an offence of this nature. Even if petitioner's arguments are accepted, offence constituted will be under section 354 IPC which is bailable offence and provision under section 438 Cr.P.C. cannot be applied in a case where there is only bailable offence. 6. However, it is made clear that petitioner is at liberty to take up the same contentions in a petition under section 437 or 439 Cr.P.C., but consideration for grant of bail under those provisions are substantially different from the consideration which are relevant for grant of anticipatory bail under section 438 Cr.P.C. With these observations, this petition is dismissed. K.HEMA, JUDGE. mn.