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Baiju vs State Of Kerala on 17 January, 2008

Kerala High Court
Baiju vs State Of Kerala on 17 January, 2008
       

  

  

 
 
  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
                      ------------------------------------
                        B.A.No.254 of 2008
                      -------------------------------------
             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

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