IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 Bail Appl..No. 3909 of 2008() ----------------------------- CMP.1519/2008 of J.M.F.C.-II, ERNAKULAM CRIME NO. 454/2008 OF KADAVANTHRA POLICE STATION APPLICANT/ACCUSED NO.2 -------------------------- THOMAS, S/O. KURIAN, PANDARATHUNDIYIL HOUSE, KADAVANTHRA, ERNAKULAM. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENTS: ------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM,REPRESENTING THE C.I. OF KADAVANTHRA POLICE STATION. BY DIRECTOR GENERAL OF PROSECUTION SRI.P.G. THAMPI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. ------------------------------------- Bail Appl.No. 3909 of 2008 ------------------------------------- Dated this the 19th day of June, 2008 ORDER Petition for bail. 2. The alleged offences are under Sections 366A, 376 and 34 of IPC. The alleged victim is aged 17 years. Petitioner is the 2nd accused in the crime. The alleged offences are under Sections 366A, 376 and 34 of IPC. According to prosecution, a minor girl aged 16 years was induced by the petitioner to go from her place of residence to the first accused's flat with intent/knowledge that it is likely that she will be forced or seduced to illicit intercourse by the first accused. It is also alleged that she was raped by the first accused from his flat. On a statement made by the minor, a crime is registered against petitioner and the first accused. 2. According to prosecution, on 15.1.2006, the Petitioner went to the de facto complainant, a girl aged 17 years, stating that the first accused asked him to admit her for a tuition. She accordingly accompanied him and on the way he had also bought food for her. On the pretext of taking her to the tuition centre, she was taken to the flat of the first accused. On reaching there, the first accused took her to the bed room. The first accused switched on the T.V. and locked the door from outside and left the place. She was sesxually harassed by the first accused before he went out. He came back in the evening and again sexually assaulted her. On the next day, the B.A.3909/08] 2 petitioner went to her and took her to the tuition class. After the tuition was over, she was taken to the flat of the petitioner again in a van belonging to petitioner. On that night also she was sexually assaulted by the first accused. 3. Learned counsel for the petitioner submitted that none of the statements made by the de facto complainant will reveal that the petitioner was aware that she will be subjected to any illegal activities by the first accused. It is argued that it cannot be inferred from the statements or the materials available at present that the petitioner had the intention or knowledge that the child is likely to be seduced or forced to illicit intercourse by first accused. It is also submitted that the girl has not disclosed anything to petitioner to impart any such intention or knowledge on him. It is submitted that he was totally unaware of any of the illegal activities as allegedly committed by first accused. 4. The petitioner is having two mentally challenged sisters and a paralysed mother. He is having only a balance of Rs.500/-. He has been working only as a driver of the first accused and he was only obeying whatever instructions were given by his master from time to time. That is all what is revealed from the statement of the girl and according to learned counsel for the petitioner, unless there is evidence to indicate that the Petitioner committed any act with the intention or knowledge that the girl is likely to be subjected to illicit intercourse with another person, he cannot be made liable for offence under Section 366A IPC. 5. The petitioner is in custody from 13.5.2008 and, as per the submissions of the learned Director General of Prosecution himself the investigation will be completed within two weeks and hence it is submitted that no harm will be caused to the B.A.3909/08] 3 investigation by the release of the petitioner. In such circumstances, according to learned counsel for petitioner, the continued detention of the petitioner will amount to penalisation of the petitioner. 6. This petition is vehemently opposed by the learned Director General of Prosecution. He read out certain passages from the case diary and explained the manner in which the offence was committed. He pointed out certain portions from the case diary which reveal that the petitioner made false representations to the minor girl that he was being taken to tuition class etc. It was also submitted by learned Director General of Prosecution that petitioner was aware that the first accused was residing alone in the flat and the minor was also made to stay in the flat. Since he knew that the child will have to be retained for a sufficiently long time, he brought food also for her, in advance as revealed from her statement. All these would indicate petitioner's equal involvement and his criminal intention, it is submitted. 7. Learned Director General of Prosecution argued that the case diary reveals that the petitioner had a star role in the activities of the first accused and but for him, it would not have been possible to procure the girl so easily for the first petitioner. It is argued that petitioner was working as the conscience- keeper of the first accused and if the petitioner is released on bail, the petitioner will tamper with evidence and aid the first accused to escape. It is submitted that the petitioner and first accused are involved in a series of cases of the very same nature and this B.A.3909/08] 4 is not the sole instance, but several cases are pending against the petitioner and the first accused. Several shocking instances of rape on minors are revealed and according to learned D.G.P. public conscience is wounded by these types of activities of the accused and all these facts may be taken note of, while considering the bail application, it is submitted by learned Director General of Prosecution that petitioner may not be granted bail till the trial is over. 8. Heard both sides. I have gone through the case diary. At this stage, as argued by learned D.G.P. it cannot be said that the petitioner was only an innocent driver who was only acting under instructions of the master and bringing children to the flat without knowing anything about what was transpiring in the flat. It is not possible at this stage to state that the ingredients of Section 366A are not attracted. I am satisfied that there are several cases against petitioner and first accused and in case, the petitioner is released on bail, it is likely to peril the investigation as pointed out by learned Director General of Prosecution. Hence, I am not inclined to grant bail to the petitioner at this stage. Application is dismissed. SD/- K. HEMA, JUDGE. Krs. / True Copy/