IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Bail Appl..No. 5774 of 2008() ----------------------------- CR.NO.136/08 OF PANDIKKAD POLICE STATION PETITIONERS/ACCUSED 2 & 3 -------------------------------------------- 1. NASEEM, S/O.ABDULLA, PANIKKARUKUNNU HOUSE, NELLIKUTHU P.O., MALAPPURAM DISTRICT. 2. SHIHABUDHEEN @ KUNHANU, S/O.MOIDEEN KURIKKAL, MANCHERI PUTHUSSERI HOUSE, NELLIKUTHU - P.O., MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 5774 of 2008 ----------------------------------------- Dated this the 25th September, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 341, 354 and 366 read with 34 of Indian Penal Code. According to prosecution, on 25.8.2008 at about 2 PM, accused 1 to 3 were travelling in an auto rickshaw and the de facto complainant showed signal to stop the vehicle and the vehicle was stopped. The first accused got out of the auto rickshaw while the de facto complainant got in and immediately he also got in to the auto rickshaw. While the auto rickshaw was moving, he started making physical advances to her and she made a hue and cry and the auto rickshaw was stopped. When she attempted to get out of the auto rickshaw, all the three accused allegedly molested her and she escaped. On a complaint lodged by her on the same day, a crime was registered under Sections 341, 354 and 366 read with 34 of Indian Penal Code. 2. Learned counsel for petitioners submitted that the second and third accused have nothing to do with the offences. Third accused was the driver of the auto rickshaw. While first and second accused were travelling in the auto rickshaw, first accused's close relative wanted to get into the auto rickshaw, and rickshaw was BA.5774/08 2 stopped. Then the second accused got into the front seat and while they were moving something happened between de facto complainant and first accused. First accused and the de facto complainant were having an unholy relationship and first accused was keeping his hand above her shoulder while they were travelling in the autorickshaw. De facto complainant's husband is working abroad. This was seen by her husband's brother. Because of this, she has allegedly made false allegations against the petitioners also preventing them from stating the true facts, if a crime is registered only against the first accused. 3. It is also pointed out that offence under Section 366 IPC is the only non-bailable offence in this case and in the nature of the allegations made such an offence will not be attracted. The other offences are bailable and hence, anticipatory bail may be granted, it is submitted. 4. Heard learned Public Prosecutor and also perused the case diary. On going through the case diary and on hearing both sides, I am satisfied that anticipatory bail can be granted to the second and third accused. But, it is made clear that the first accused may not stand in the same footing for consideration of anticipatory bail. Hence, the following order is passed: BA.5774/08 3 i) Petitioners are directed to surrender before the Magistrate Court concerned within seven days from today and make themselves available for interrogation. ii) Thereafter, in the event of their arrest, if any bail application is filed, petitioners shall be released on bail on their executing bond for Rs.25,000/- each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate, on condition that they shall co- operate with the investigation. Petition is allowed. K.HEMA, JUDGE vgs.