IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 27TH JUNE 2008 / 6TH ASHADHA 1930 Bail Appl..No. 4109 of 2008() ----------------------------- CRIME NO.364/08 OF VAIKOM POLICE STATION PETITIONERS/ACCUSED 1 TO 3:- --------------------------------------------- 1. JAYAKUMAR, AGED 35 YEARS, S/O PURUSHOTHAMAN, SREENARAYANAMANDIRAM, THOTTAKAM, VAIKOM, KOTTAYAM DISTRICT. 2. SANTHA, AGED 57 YEARS, W/O PURUSHOTHAMAN ,SREENARAYANAMANDIRAM, THOTTAKAM, VAIKOM, KOTTAYAM DISTRICT. 3. JESSY, AGED 28 YEARS,D/O PURUSHOTHAMAN, SREENARAYANAMANDIRAM,THOTTAKAM, VAIKOM KOTTAYAM, BY ADV. SRI.GEORGE SEBASTIAN RESPONDENTS: ------------- STATION HOUSE OFFICER, VAIKOM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 4109 of 2008 ----------------------------------------- Dated this the 27th day of June, 2008 O R D E R This petition is for anticipatory bail. 2. Petitioners are husband, mother-in-law and sister-in-law of the de facto complainant. According to prosecution, the first petitioner married the de facto complainant on 28.6.2004 and they were residing together till 31.12.2006, and during this period the de facto complainant had four miscarriages. She was physically and mentally harassed by the petitioners. 3. Learned counsel for petitioners submitted that the de facto complainant and the first petitioner are residing separately from 31.12.2006 onwards, as admitted in the First Information Statement itself. Thereafter, they had no connection with each other. But, recently one Advocate Sumana Das called the first petitioner from Varkala and informed him that the de facto complainant wants a divorce from the petitioner. But, first petitioner was not willing to give divorce. So, he wrote a letter, Annexure-A on 7.1.2008 to the de facto complainant making his stand clear to her. But, the de facto complainant filed the present BA.4109/08 2 complaint raising various allegations, it is submitted. 4. According to learned counsel for the petitioner, petitioners are totally innocent of the allegations made. It is admitted that the relationship between the first petitioner and the de facto complainant was not cordial but first petitioner was not willing for a divorce as requested by defacto complainant. It is only because the first petitioner is not agreable for a divorce that the complaint has come up with a highly belated complaint, it is submitted. According to learned counsel for petitioner, the complaint may be willing to join the petitioner but, the complaint is lodged only at the instance of her family members. 5. Learned Public Prosecutor pointed out that as per the allegations in the complaint, the first petitioner was not maintaining the de facto complainant and that was the reason for the strain in the matrimonial relationship. So, she was forced to live separately. 6. On hearing both sides, it is clear that the first petitioner has not been maintaining the de facto complainant for the past two years. According to the petitioner himself, he was not keeping any contact with the de facto complainant. The letter written by the first petitioner to the de facto complainant, vide Annexure A, he is not even aware of the present whereabouts of his wife. It appears BA.4109/08 3 that after she left he had not made any attempts even to enquire about her. However, it can also be seen that defacto cmplanant was silent for a long period and it appears prima facie, at this stage that there is no satisfactory explanation in the complaint for the long delay in filing the complaint. May be, the alleged telephone call from the lawyer requesting for divorce and the refusal persuaded her to file a complaint. 7. On going through the provisions contained in Sections 438 and 437 of Indian Penal Code, it is clear that the court can impose such conditions in the direction while granting anticipatory bail, in the light of the facts of the particular case. There is no restriction in imposing any condition which will be just and proper, on the facts of each case. This is a case where, firstpetitioner has not even enquired about his wife and evidently not maintained her. As per the complaint, during the period when they were living together itself, he was guilty of not maintaining her. Annexure A itself reveal that he did not bother to even find out the whereabouts of his wife, ever since she left her, though he is a sales man having sufficient income. 8. Taking all these facts into consideration, I find that anticipatory bail can be granted imposing conditions. BA.4109/08 4 Hence, the following order is passed: i) Petitioners shall surrender before the investigating officer within seven days from today and they shall make themselves available for interrogation. ii) in the event of their arrest, if any, they shall be released on bail on each of them executing bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the arresting officer on the following conditions: a) Petitioners shall appear before the investigating officer as and when directed. b) Petitioners shall co-operate with the investigation. c) First Petitioner shall deposit an amount of Rs.600/- every month before the Judicial First Class Magistrate Court, Varkkala towards monthly maintenance to the de facto complainant with effect from 5.7.2008, until further orders. The first payment will be made on 5.7.2008 and it is made clear that this BA.4109/08 5 condition is applicable only to first petitioner. In case of breach of this condition while on bail, his bail is liable to be cancelled. This petition is allowed. K.HEMA, JUDGE vgs.