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The Indian Penal Code, 1860
Section 327 in The Indian Penal Code, 1860
Section 3 in The Indian Penal Code, 1860
Section 23 in The Indian Penal Code, 1860
The Children Act, 1960 1

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Kerala High Court
Kamarunnisa, W/O.Imthyaz ... vs State Of Kerala, Rep. By on 8 June, 2010

IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl..No. 2876 of 2010()

1. KAMARUNNISA, W/O.IMTHYAZ AHAMMED M.S. ... Petitioner

2. IMTHYAZ AHAMMED M.S.

Vs

1. STATE OF KERALA, REP. BY

... Respondent

2. THE SUB INSPECTOR OF POLICE

For Petitioner :SRI.SAIBY JOSE KIDANGOOR For Respondent :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice K.HEMA

Dated :08/06/2010

O R D E R

K.HEMA, J.

---------------------------------------------- Bail Application No.2876 of 2010

---------------------------------------------- Dated 8th June, 2010.

O R D E R

This petition is for anticipatory bail.

2. The alleged offences are under Sections 323, 324, 327 and 34 of the Indian Penal Code, Sections 23 and 24 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and Section 3 of the Prevention of Child Labour(Prohibition and Regulation) Act. According to prosecution, the alleged victim girl who is aged 14 years was working in the house of the petitioners as maid servant. While so, petitioners who are husband and wife, physically tortured the child by beating on several parts of her body and burning her by keeping a hot iron rod on her chest. Thus, petitioners, who were having control over the juvenile, assaulted the juvenile and thereby committed the various offences alleged against them.

3. Learned counsel for petitioners submitted that the allegations are absolutely false and petitioners have not committed any such offences. The alleged victim's mother was working as maid servant in petitioners' house for the past three BA NO.2876/10 2

years. She brought the girl to the house of petitioners, when she failed in 6th Standard. But, when the mother went to her native place at Theni, for the delivery of her daughter, she left behind the girl in petitioners' house.

4. Thereafter, petitioners visited second petitioner's father's house for a family get together and the girl was also taken with them, it is submitted. According to petitioners, the child sneaked out of the house and went to a house in the neighbourhood, where a woman, who was working as maid servant in father's house and who was expelled from her job, was residing. On enquiry, it is understood that girl was instigated by that woman who had enmity towards second petitioner's father to make false allegations to the police. The child's intention was only to go back to her native place. The child happened to continue her residence in petitioners' house, only because her mother did not take the child to the native place.

5. According to petitioners, the mother is still in good terms with petitioners. She has no complaint that herself or the child was tortured by petitioners at any time, during their stay. BA NO.2876/10 3

The mother was questioned by the police and absolutely no allegations were made by her against petitioners. Petitioners firmly believe that false allegations are made against petitioners, only under instigation of the maid servant, who was expelled from second petitioner's father's house.

6. It is also submitted that all the offences alleged against petitioners, except offence under Section 327 of the Indian Penal Code, are bailable. It is also submitted that a plain reading of Section 327 IPC will reveal that the said offence is not at all attracted in this case. The only non-bailable offence being under Section 327, which is not attracted, if petitioners are arrested on the allegations made against them, they will be put to irreparable injury and loss, if anticipatory bail is not granted, it is submitted.

7. Learned Public Prosecutor submitted that serious allegations are made by the alleged victim against petitioners in the first information statement. However, he fairly conceded that victim's mother was questioned by police but, she has not made any allegation against petitioners. The statement of the victim's BA NO.2876/10 4

mother was placed before this Court and it is seen from the said statement that petitioners were behaving affectionately towards her and that neither of the parents of the victim has any grievance against petitioners. It is also conceded that all offences alleged against petitioners, except offence under Section 327 IPC, are bailable and that it is doubtful if Section 327 IPC is attracted in this case.

8. On hearing both sides, I am satisfied that except Section 327 IPC, all other offences alleged against petitioners are bailable. Section 327 reads as follows :- "327. Voluntarily causing hurt to extort property, or to constrain to an illegal act.-- Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." On a reading of the above provision and the allegations made against petitioners, I am satisfied that petitioners have a strong and arguable case in respect of involvement of section 327 of IPC. BA NO.2876/10 5

However, considering the serious nature of the allegations made by the alleged victim in the first information statement, I do not think it fit to grant anticipatory bail, in a case of this nature. Still, in the light of the arguments advanced on the involvement of Section 327 IPC, which is the sole non-bailable offence alleged against petitioners, I think that in the interest of justice, certain observations are to be made and the following order is passed : i) Petitioners shall surrender before learned Magistrate concerned or the Investigating Officer, within seven days from today and co-operate with the investigation.

ii) On such surrender, for the purpose of bail, offence under Section 327 IPC will be treated as not involved.

Petition is disposed of accordingly.

K.HEMA, JUDGE.

tgs