IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 3RD FEBRUARY 2009 / 14TH MAGHA 1930 Bail Appl..No. 59 of 2009() ------------------------------------ CRIME NO.170/2008 OF BADIADKA POLICE STATION ......... PETITIONER (S): ACCUSED -------------------- RAGHAVAN NAIR, S/O. CHANDRAN NAIR, JALU HOUSE, MUNDITHADKA, MUGGU, KASARGODE. BY ADV. SRI.ALAN PAPALI SRI.SOJAN MICHEAL RESPONDENT(S): COMPLAINANT ------------------------- STATE OF KERALA, (S.I. OF POLICE CRIME NO. 170/2008 OF BADIADKA POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MR.K.S.SIAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= B.A. No. 59 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 3rd day of February, 2009 O R D E R Petition for anticipatory bail. 2. The alleged offences are under sections 493, 415, 417, 506(ii) and 312 IPC. According to prosecution, petitioner deceived the de facto complainant by inducing her to believe that she is lawfully married to him and in that belief the complainant and accused cohabited on the 1st week of May, 2008 and he promised to marry her. The complainant became pregnant in the relationship and petitioner gave some tablets to her, as a result of which, she had miscarriage. On a private complaint filed by the complainant, a crime was registered and is being investigated into. 3. Learned counsel for petitioner submitted that offence under section 493 IPC will not be attracted, since on facts, the ingredients of the offence are not made out. As per the allegations in the complaint, the cohabitation was in May, 2008 and at that time, de facto complainant's husband was alive. He is a retired police official and the de facto complainant is aged 40 years and it cannot be believed that any person can deceive such a woman to believe that she is lawfully married to petitioner, and to cohabit with him in that belief. When the husband is alive, BA 59/09 -2- no woman can lawfully marry another person and such a woman cannot be made to believe that she is lawfully married to another, it is submitted. 4. This petition is opposed. Learned Public Prosecutor submitted that there are allegations in the complaint which attract offence under section 493 IPC and also under section 312 IPC. It is submitted that, on the facts of the case, this is not a fit case to grant anticipatory bail. Learned Public Prosecutor also submitted that though the section of offence is noted as section 312 IPC, on going through the records, it is clear that the miscarriage done without consent of the woman and hence, the offence is under section 313 Cr.P.C. which is a non bailable offence. She was deceived by stating that tablets given to her by petitioner are good for pregnant woman and hence, she had consumed the same. There is nothing to show that the miscarriage was conducted with the consent of the woman and hence, offence under section 313 is attracted, it is submitted. 5. On hearing both sides, even if the arguments in respect of section 493 IPC is accepted, there is no plausible explanation for having committed the other offences. It is true that as per the allegations in the complaint and the records, the BA 59/09 -3- cohabitation was in May, 2008, while the alleged victim's husband was alive and she could not lawfully married to petitioner. On hearing both sides, I find that petitioner has a strong case of defence relating to offence under section 493 IPC. However, at this stage of investigation, it cannot be concluded, especially in the light of the arguments advanced by learned Public Prosecutor, that offence involved is under section 312 and not under section 313 IPC. 6. Considering the serious nature of the allegations made and the various facts and circumstances of the case, I am not inclined to grant anticipatory bail. However, petitioner is at liberty to raise all the contentions before the Magistrate on his surrender and on filing of application and it shall be disposed of, on merit, untrammelled by any of the observations made in this order. It is needless to say that consideration for grant of anticipatory bail is different from consideration for grant of bail under section 437 Cr.P.C. In the above circumstances, the following order is passed:- 1) Petitioner shall surrender before the Magistrate court concerned or before the Investigating Officer within seven days from today and if any BA 59/09 -4- bail application is filed, it shall be disposed of, on merit, on consideration of the rival contentions raised in this case. 2) No further application for anticipatory bail by petitioner in this crime will be entertained by this Court, since on the facts in this case, this Court has ordered that this is not a fit case to grant anticipatory bail and any order to the contrary will amount to review, which is not permissible in law. With these observations, this petition is disposed of. K.HEMA, JUDGE. mn.