IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 Bail Appl..No. 254 of 2008() ---------------------------- CRIME NO.782/05 OF KOLLAM EAST POLICE STATION : PETITIONER/ACCUSED ----------------------------------- BAIJU, LEKSHMI BHAVANAM, SOUTH OF PATTALAKURISADI, KOLLAM EAST VILLAGE, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KOLLAM EAST POLICES STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.254 of 2008 ------------------------------------- Dated this the 17th day of January, 2008 ORDER Application for anticipatory bail. Petitioner faces allegations under Sections 376 and 366 A I.P.C. The crux of the allegations against the petitioner is that he kidnapped a minor girl and had sexual intercourse with her on the promise that he will marry her. He did not agree to marry her. It is contended that the acts of the petitioner amount to the offences of kidnapping and rape punishable under the I.P.C. 2. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor submits that the victim girl was born on 18.06.87. The alleged incident had taken place on 21.10.05. She was not hence a minor on the relevant date. She was far above the age of consent. The allegation under Section 366 (A) I.P.C cannot hence stand. 3. The learned counsel for the petitioner submits that allegation under Section 376 I.P.C is also totally unjustified. All the available indications do show convincingly that it was a consensual sexual intercourse of persons in love and who had contemplated marriage. In any view of the matter the subsequent breach of the promise to marry even if true, cannot, in B.A.No.254 of 2008 2 the facts and circumstances of this case, convert a consensual sexual intercourse into one of rape, submits the learned counsel for the petitioner. 4. The learned Public Prosecutor, in the facts and circumstances of this case, does not oppose the application. I am satisfied that anticipatory bail subject to appropriate conditions can be issued in favour of the petitioner. The learned counsel for the petitioner submits and he has produced the copy of an affidavit sworn to by the defacto complainant that the defacto complainant has now got married. She has indicated that she does not have any surviving grievance against the petitioner. 5. In the result, this Bail Application is, allowed. The following directions are issued under Section 438 Cr.P.C. i) The petitioners shall appear before the learned Magistrate at 11 a.m on 24.01.2008. He shall be enlarged on regular bail on his executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate; ii) The petitioner shall make himself available for interrogation before the Investigating Officer between 10 a.m and 5 p.m on 25.01.08 and 28.01.08. During this period, the B.A.No.254 of 2008 3 Investigating Officer shall be at liberty to interrogate the petitioner in custody and take all necessary for the proper conduct of the investigation and conduct of a potency test. Thereafter the petitioner shall make himself available for interrogation before the Investigating Officer between 10 a.m and 12 noon on all Mondays for a period of one month and subsequently the petitioner shall make himself available for interrogation as and when directed by the Investigating Officer in writing to do so; iii) If the petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioner and deal with him in accordance with law as if those directions were not issued at all; iv) If the petitioner were arrested prior to his surrender on 24.01.2008 as directed in clause (1) above, he shall be released from custody on his executing a bond for Rs.50,000/- (Rupees Fifty thousand only) without any sureties undertaking to appear before the learned Magistrate on 24.01.2008. (R.BASANT, JUDGE) rtr/- B.A.No.254 of 2008 4