IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 254 of 2008()
1. BAIJU,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.C.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :17/01/2008
O R D E R
R.BASANT, J
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B.A.No.254 of 2008
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Dated this the 17th day of January, 2008
ORDER
Application for anticipatory bail. Petitioner faces allegations
under Sections 376 and 366 A I.P.C. The crux of the allegations
against the petitioner is that he kidnapped a minor girl and had
sexual intercourse with her on the promise that he will marry her.
He did not agree to marry her. It is contended that the acts of the
petitioner amount to the offences of kidnapping and rape
punishable under the I.P.C.
2. Notice was given to the learned Public Prosecutor. The
learned Public Prosecutor submits that the victim girl was born on
18.06.87. The alleged incident had taken place on 21.10.05. She
was not hence a minor on the relevant date. She was far above
the age of consent. The allegation under Section 366 (A) I.P.C
cannot hence stand.
3. The learned counsel for the petitioner submits that
allegation under Section 376 I.P.C is also totally unjustified. All
the available indications do show convincingly that it was a
consensual sexual intercourse of persons in love and who had
contemplated marriage. In any view of the matter the subsequent
breach of the promise to marry even if true, cannot, in
B.A.No.254 of 2008 2
the facts and circumstances of this case, convert a consensual
sexual intercourse into one of rape, submits the learned counsel
for the petitioner.
4. The learned Public Prosecutor, in the facts and
circumstances of this case, does not oppose the application. I am
satisfied that anticipatory bail subject to appropriate conditions
can be issued in favour of the petitioner. The learned counsel for
the petitioner submits and he has produced the copy of an
affidavit sworn to by the defacto complainant that the defacto
complainant has now got married. She has indicated that she
does not have any surviving grievance against the petitioner.
5. In the result, this Bail Application is, allowed. The
following directions are issued under Section 438 Cr.P.C.
i) The petitioners shall appear before the learned
Magistrate at 11 a.m on 24.01.2008. He shall be enlarged on
regular bail on his executing a bond for Rs.50,000/- (Rupees Fifty
thousand only) with two solvent sureties each for the like sum to
the satisfaction of the learned Magistrate;
ii) The petitioner shall make himself available for
interrogation before the Investigating Officer between 10 a.m and
5 p.m on 25.01.08 and 28.01.08. During this period, the
B.A.No.254 of 2008 3
Investigating Officer shall be at liberty to interrogate the
petitioner in custody and take all necessary for the proper
conduct of the investigation and conduct of a potency test.
Thereafter the petitioner shall make himself available for
interrogation before the Investigating Officer between 10 a.m and
12 noon on all Mondays for a period of one month and
subsequently the petitioner shall make himself available for
interrogation as and when directed by the Investigating Officer in
writing to do so;
iii) If the petitioner does not appear before the learned
Magistrate as directed in clause (i), directions issued above shall
thereafter stand revoked and the police shall be at liberty to
arrest the petitioner and deal with him in accordance with law as
if those directions were not issued at all;
iv) If the petitioner were arrested prior to his surrender on
24.01.2008 as directed in clause (1) above, he shall be released
from custody on his executing a bond for Rs.50,000/- (Rupees
Fifty thousand only) without any sureties undertaking to appear
before the learned Magistrate on 24.01.2008.
(R.BASANT, JUDGE)
rtr/-
B.A.No.254 of 2008 4
