IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 Bail Appl..No. 964 of 2010() ---------------------------- CRIME NO.122/09 OF KAMBAMMETTU POLICE STATION PETITIONER/ACCUSED -------------------------------------- SANTHOSH, S/O.KUNJUMON, AGED 26 YEARS, VAZHAKKALAYIL HOUSE, CHETTUKUZHY KARA, KOCHARA P.O., KARUNAPURAM VILLAGE, UDUMBANCHOLA TALUK. BY ADV. SRI.S.M.ALTHAF RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.964 of 2010 --------------------------------------------- Dated this the 22nd day of February, 2010 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.122 of 2009 of Kambammettu Police Station. 2. The offence alleged against the petitioner is under Section 376 of the Indian Penal Code. 3. The de facto complainant belongs to a scheduled caste. It is stated that the accused also belongs to a scheduled caste. The de facto complainant is aged 28 years. In the petition filed by the de facto complainant, it is stated that the accused took her to different places on the promise to marry her. Later, the brothers of the petitioner, threatened the accused and the de facto complainant and forcibly took away the accused to his house. The de facto complainant became pregnant. A petition was filed by the de facto complainant before the District Superintendent of Police. Accordingly, the crime was registered, BA No.964/2010 2 on forwarding the petition to the Sub Inspector of Police, Kasaragod. 4. The learned counsel for the petitioner submitted that even going by the averments in the petition filed by the de facto complainant, no offence under Section 376 of the Indian Penal Code is made out. At best, the offence would be under Section 493 of the Indian Penal Code. 5. The learned Public Prosecutor submitted that even though the offence comes under Section 493 IPC, it is non bailable and in the facts and circumstances of the case, the petitioner is not entitled to anticipatory bail. 6. While disposing of this Bail Application, it is not necessary to decide whether the ingredients would constitute an offence under Section 376 IPC or whether Section 493 IPC alone would be attracted. In either case, I do not think that the facts and circumstances of the case would justify the grant of anticipatory bail to the petitioner. I am of the view that the petitioner is not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. Custodial interrogation of the petitioner may be necessary during investigation. If BA No.964/2010 3 anticipatory bail is granted to the petitioner, it would adversely affect the proper investigation of the case. For the aforesaid reasons, the Bail Application is dismissed. K.T.SANKARAN, JUDGE csl