IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 Bail Appl..No. 3702 of 2008() ----------------------------- CRIME NO.424/2008 OF KOTTIYAM POLICE STATION PETITIONER --------------------------- AMMATHAYA MAHAMAYA DEVI, AMMATHAYA MAHAMAYA DEVI TEMPLE, KIZHAVOOR CHERRY, MUKATHALA. P.O., KOLLAM. (SOLE ACCUSED IN CR.NO.424 OF 2008 OF KOTTIYAM POLICE STATION). BY ADV. SRI.T.R.ASWAS SMT.S.RAJEEVAN RESPONDENT: ------------- STATE OF KERALA, REP.BY S.I.OF POLICE, KOTTIYAM POLICE STATION, KOLLAM DISTRICT. BY D.G.P.SRI. P.G.THAMPI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.No. 3702 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of June, 2008 O R D E R Application for anticipatory bail. 2. According to the prosecution, a crime is registered against the petitioner under section 420 IPC. As per the allegations in the First Information Statement, several marriage proposals came for the defacto-complainant's sister Sanuja, but nothing worked out and hence a “ person” informed him that the obstruction for the marriage can be removed, if he approached Ammathaya Mahamaya Devi, who is conducting poojas, etc. Accordingly, on 10-3-2005 at 10 a.m. he approached the petitioner and the petitioner demanded Rs.1 lakh for removing the obstruction in the marriage. Immediately Rs.50,000/- was given to her. Thereafter Rs.50,000/- more was given. Later, she also procured 3 gold bangles weighing 5 sovereigns for the purpose of pooja. In spite of doing all these, the marriage did not take place. So, he demanded the money and gold ornaments back from the petitioner. She refused to give the same and hence the defacto-complainant was satisfied that she was cheating him and he filed the complaint. Since she promised to give back the amount and the gold on several occasions, delay occurred in making the complaint. BA 3702/08 2 3. The learned counsel for the petitioner argued that the alleged incident occurred on 10-3-2005 as per the First Information Statement, but the complaint was lodged after three years of the alleged incident. As per the allegations in the complaint itself, the money was procured by the petitioner for removing the obstruction in the marriage of the defacto- complainant's sister. But she was married twice in her life, it is submitted. A copy of the marriage certificate is produced, as per which, defacto- complainant's sister was married to one Nasim, S/o.Sulaiman on 30-5-2005, that is within about two months of the alleged payment of first instalment of Rs.50,000/-. The marriage certificate is produced in B.A. No.3701/2008 and it contains all the details of the marriage. The details of the earlier marriage, which took place on 1-4-2000, are also stated in detail in the application. The name of the husband, venue of marriage etc. are all stated therein. 4. Learned Director General of Prosecution vehemently opposed the application. It is argued that the petitioner is originally named Vijayakumari and she is cheating the public by calling herself as Ammathaya Mahamaya Devi and she represent herself as a Goddess. She is conducting poojas and obtaining huge money, gold ornaments from the public. There is a public move against the petitioner against the fraudulent BA 3702/08 3 acts and several persons in the society are cheated by the petitioner etc. But, the general allegations are not contained in the First Information Statement. As far as this court is concerned, there is a citizen of India before me against whom a crime is registered on the basis of a complaint. The question is whether the offence alleged is committed or not and if the facts and circumstances warrant grant of the relief or the refusal of the same. 5. Learned Director General of Prosecution pointed out that there is a public protest against the petitioner and the public is agitating about the activities of the petitioner. The learned counsel for the petitioner pointed out that it is an off-shoot of a political rivalry between two groups and there is a move by the DYFI activists against the sanyasis and the people who are engaged in spiritual activities. It is submitted that the petitioner accepted a name Ammathaya Mahamaya Devi and notifications were published in accordance with law. It is submitted that the petitioner has constructed a temple in her name and in the festival, B.J.P. Leader Sri O.Rajagopal the then Minister had inaugurated the festival and hence the D.Y.F.I. workers are now against the petitioner. 6. On hearing both sides, it is clear that the learned Director General of Prosecution did not deny the contention that the defacto- complainant's sister was married twice, once prior to the date on which the BA 3702/08 4 petitioner received the money and later within about two months of payment of Rs.50,000/- to petitioner. So, if such contentions are accepted, the purpose for which the defacto-complainant conducted pooja through the petitioner was achieved and the marriage had taken place also. 7. It is also to be noted that there is 3 years delay in making the complaint. Though the learned Director General of Prosecution submitted that the petitioner made fraudulent representation to the defacto- complainant, etc., First Information Statement itself reveals that the said submission is not correct. As per First Information Statement, one “person” told him that the obstruction in the marriage would be removed, if he went to the petitioner. There is nothing therein to show that the petitioner herself made false representation and thereby induced the defacto-complainant deliver the money. For an offence under section 420 IPC to attract there has to be fraudulent and dishonest inducement by the accused himself/herself. It is also pointed out by the learned counsel for the petitioner that a surprise search was conducted in the premises of the petitioner on the very same day within two hours of the receiving the complaint, but nothing incriminating was seized from the premises, which are in possession of the petitioner. In the above circumstances, I find that bail can be granted to the petitioner. BA 3702/08 5 8. In the result the following order is passed:- 1) The respondent is directed to release the petitioner in the event of her arrest, if any, on her executing a bond for Rs.25,000/- with two solvent sureties each for the like amount to the satisfaction of the arresting officer on condition that she shall co-operate with the investigation and make herself available for interrogation as and when directed by the Investigating Officer. 2) If the petitioner is required for the purpose of interrogation, notice as contemplated under section 160 Cr.P.C. shall be given. 3) In case there is any allegation that the petitioner is refusing to co-operate with the investigation or make herself available for interrogation, it is made clear that this order is liable to be cancelled. This application is allowed as above. K. HEMA, JUDGE. mn.