IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 4442 of 2008()
1. MUHAMMED SALIM, S/O.ABDUL RAHMAN,
... Petitioner
2. ABDUL GAFOOR, S/O.ABDUL RAHMAN,
Vs
1. STATE OF KERALA REPRESENTED BY THE SUB
... Respondent
For Petitioner :SRI.B.MOHANLAL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :17/10/2008
O R D E R
K.HEMA, J.
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B.A. No.4442 OF 2008
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Dated this the 17th day of October, 2008
O R D E R
This petition is for anticipatory bail.
2. The alleged offences are under Sections 498(A) and 34 of
I.P.C. According to prosecution, the first accused married the
defacto complainant in the year 2004 and 40 sovereigns of gold
were given to the defacto complainant and those were sold by
the first accused. Rs.1,15,000/- was also given to the first
accused by the defacto complainant’s father for arranging a visa
to go to gulf. He left for gulf in 2005. In the meantime, the first
accused and the second accused were harassing the defacto
complainant by demanding more dowry and more money.
3. Even after coming back from gulf 26.01.2008 the first
accused made a demand for Rs.5 Lakhs from the defacto
complainant and she was ousted from the marital house. The
second accused is the brother of the first accused. It is also
alleged that defacto complainant’s parents were prepared to give
an extent of 10 cents of property in the name of the defacto
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complainant but the first accused was not willing to accept the
same but he demanded more money and harassed her.
4. Learned counsel for the petitioners submitted that the
allegations made against him are not correct. The first accused
filed a petition for restitution of conjugal rights and there is a
child in the wedlock and that after he came back from gulf in
January 2008 they lived together, but some difference of opinion
developed, since she insisted that he should stay in her house. It
is also submitted that the case was referred to the Lok Adalath
for settling the marital dispute between the parties but the
defacto complainant was continuously absent and hence the
matter could not be settled. In such circumstances, anticipatory
bail may be granted, it is submitted.
5. Learned Public Prosecutor submitted that he has no
objection in granting anticipatory to the second accused on
conditions. But there are serious allegations against the first
accused. On considering the nature of allegations made,
anticipatory bail may not be granted to him. The Lok Adalath
returned the file to this court, since the defacto complainant sent
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a letter stating her difficulty to appear before the Lok Adalath,
since her father had an accident and he is unable to travel. It is
also stated in the letter that no amount was paid by first accused
towards maintenance and hence she is not able to come to the
Lok Adalath. It also admitted that a petition for maintenance is
pending before the court.
On hearing both sides to protect the interest of parties, I
find that anticipatory bail can be granted on conditions.
Hence, the following order is passed :
The petitioners shall surrender before the
Investigating Officer within 15 days from today and
co-operate with the investigation and in the event
of their arrest, they shall be released on bail on
their executing bond for Rs.25,000/- each with two
solvent sureties each for like sum to the
satisfaction of the Arresting Officer on the following
conditions :
i. The first accused shall produce an F.D.
Receipt for Rs.1 Lakh in the name of the
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defacto complainant and the child within 15
days from today. This condition is
applicable only to the first accused.
ii. The petitioners shall not influence or
intimidate any witness or commit any
offence while on bail.
iii. The petitioners shall report before the
Investigating Officer as and when directed
and co-operate with the investigation.
After dictating the order, learned counsel for the
petitioners submitted that he has objection in depositing the
amount of Rs.1Lakh and that this objection may be recorded. It
is recorded. But, it is made clear that if the first accused fails to
deposit the amount as per the condition imposed, then the order
will not be come into effect, as far as the first petitioner is
concerned. Section 438 Cr.P.C. allows the court to make any
condition as it deem fit and proper, in the circumstances.
Though the facts are not persuasive to grant anticipatory bail, it
is granted only since this court finds that the interest of the
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victim can be protected by imposing condition and allowing this
petition. If the first petitioner who is working abroad and is
affluent cannot comply with the condition, he does not deserve
the benefit of this order.
With these observation, the petition is allowed.
K.HEMA, JUDGE
pac