IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 Bail Appl..No. 7277 of 2011() ----------------------------- CRIME NO.1084/2011 OF IRINJALAKUDA POLICE STATION PETITIONER : ACCUSED: --------------------------- SAIDHU, AGED 65 YEARS, S/O. KUNCHI SAIDHU, THARUVIL HOUSE, PATTAPADAM, THISSUR DISTRICT. BY ADV. SRI.RAJESH CHAKYAT RESPONDENT: COMPLAINANT -------------------------- THE SUB INSPECTOR OF POLICE, IRINJALAKUDA POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Bail Appln.No.7277 of 2011 ---------------------------------------------- Dated this the 28th day of September, 2011 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The Petitioner is the sole accused in Crime No.1084 of 2011 of Irinjalakuda Police Station. 2. The offence alleged against the petitioner is under Section 377 of the Indian Penal Code. 3. The prosecution case is the following:- On 27/06/2011 at 7 P.M., the de facto complainant sent her son, aged 13 years to the shop of the accused to purchase some articles. When the boy went to the shop, he was forcibily taken inside the shop and the petitioner committed the offence under Section 377 of the Indian Penal Code. 4. The learned Counsel for the petitioner submitted that the case is foisted against the petitioner. In respect of the incident which allegedly took place on 27/06/2011, the F.I.R. was registered only on 08/07/2011. In paragraph two of the Bail Application the petitioner stated thus:- Bail Appln.No.7277/2011 : 2 : “2. It is submitted that the petitioner is absolutely innocent on the allegation leveled against him. In fact the petitioner was a member of Jamath committee and the son of the de facto complainant is a student of Religious school in the Mosque. While so there was some allegation against this particular boy that he is having some immoral habits and is trying to misbehave with some of the students who are studying there. On the above allegation the petitioner warned the de facto complainant's son and it was informed that any such complaints were received there will be strict action against him and will be dismissed from the religious school. On the vengeance of the above incident on the next day above false allegation is made against the petitioner. More over it is to be noted that as according to the de facto complainant the incident was happened on 27.06.2011 and they made the complaint only on 08.07.2011 that too after more than 10 days. This itself shows that the allegation is a preplanned one and made to harass this petitioner. Further it is submitted that on a mere reading of the statement will reveal that the above allegation is raised in order to harass this petitioner and to wreck there vengeance. It Bail Appln.No.7277/2011 : 3 : is stated in the F.I. Statement that the wife of the accused was near by and on hearing the cry she came there. The above fact itself show that the allegation is preplanned and only to defame the accused/petitioner.” 5. The delay in lodging the F.I. Statement is explained by the de facto complainant. Her husband is working abroad. Immediately after the incident, the de facto complainant tried to contact her husband, but it was in vain. Since the boy had great difficulty to pass urine, he was taken to the Primary Health Centre. It is also stated that the family of the de facto complainant and that of the accused are closely connected. Some persons intervened in the matter and the de facto complainant did not immediately report the matter to the police. However, a propaganda was made by the accused that the matter was settled with the de facto complainant by paying a sum of Rupees One lakh to her. Because of the ignominy caused to the family of the de facto complainant, she was constrained to approach the Police. 6. Whether the delay in lodging the F.I. Statement is justifiable or whether it is a ground for doubting the veracity Bail Appln.No.7277/2011 : 4 : of the case put forward by the accused, are all matters to be decided at the time of trial. So also, the case put forward by the petitioner as stated in the Bail Application, is also a matter which can be raised at the time of trial. While disposing of an application for anticipatory bail, a decision on the disputed question of facts should not normally be made by the court. 7. The allegations levelled against the petitioner are serious in nature. In the facts and circumstances of the case, I do not think that the petitioner is entitled to get the discretionary relief under Section 438 of the Code of Criminal Procedure. The matter requires investigation. Custodial interrogation of the petitioner may be required in the case. If anticipatory bail is granted to the petitioner, it would adversely affect the proper and smooth investigation of the case. For the aforesaid reasons, the Bail Application is dismissed. K.T.SANKARAN, JUDGE skj