IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Bail Appl..No. 1758 of 2008() ----------------------------- CRIME 136/08 OF CHERPU POLICE STATION PETITIONER : ----------------- RADHAKRISHNAN, KORAPPATHU HOUSE AMMADAM, CHERPU, TRISSUR. BY ADV. SMT.S.MUMTAZ RESPONDENTS: ------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR ADV.SRI.S.U.NAZER THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` B.A. No. 1758 OF 2008 B ```````````````````````````````````````````````````` Dated this the 19th day of March, 2008 O R D E R Application for anticipatory bail. Petitioner, a police constable, faces the prospect of imminent arrest in a crime registered alleging offences punishable, inter alia, under sections 366A and 376 IPC. The petitioner resides along with his wife and children. The victim was a young girl who lives with her parents in one of the neighbouring houses. She used to come to the house of the petitioner to give company to the wife of the petitioner while he was on night duty. Intimacy appears to have developed between the petitioner and the said girl and even before she had attained 15 years, she is alleged to have had sexual intercourse with him. His wife became suspicious. The parents of the girl also came to know of the relationship. There were quarrels and disagreements. It is alleged that the petitioner had taken BA.1758/08 : 2 : away the girl/victim from the custody of her parents. He started residing along with her in the house of his friend. The girl was found missing and a complaint was filed by her mother on 24.2.08. In the course of investigation, the petitioner and the victim were traced at the house of his friend. Accordingly, crime has been registered. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is innocent. Even if the entire allegations were accepted, the girl was above the age of consent and sexual intercourse with her cannot constitute the offence of rape. Consensual sexual intercourse with her does not constitute the offence of rape, submits the learned counsel for the petitioner. 3. The learned Public Prosecutor opposes the application vehemently. The learned Public Prosecutor submits that the sexual intercourse had started and the petitioner had started exploiting the young girl even before BA.1758/08 : 3 : she had attained the age of 16 years as is evident from the totality of circumstances. The learned Public Prosecutor submits that in any view of the matter, the offence of kidnapping for the purpose of sexual intercourse is also clearly made out from the totality of circumstances. In any view of the matter, the petitioner is not entitled for invocation of the extraordinary equitable discretion under section 438 Cr.P.C. The petitioner may be directed to surrender and seek regular bail in the normal and usual course, submits the learned Public Prosecutor. 4. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. I am satisfied that there are no features in this case which would justify the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioner must appear before the investigating officer or the learned Magistrate having jurisdiction and then seek regular bail in the BA.1758/08 : 4 : normal and ordinary course. 5. In the result, this petition is dismissed. Needless to say, if the petitioner surrenders before the investigating officer or the learned Magistrate and applies for bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits, in accordance with law and expeditiously. (R.BASANT, JUDGE) aks