IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 Crl.MC.No. 300 of 2008() ------------------------ AGAINST THE JUDGEMENT/ORDER IN BA.261/2008 Dated 17/01/2008 .................... PETITIONER: DEFACTO COMPLAINANT ------------------------------- SUNILDETH, S/O. SIVADASAN, AYODHAYAYIL, CHITTATTINKARA DESOM, AVANAVANCHERRY VILLAGE, ATTINGAL, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS: STATE AND ACCUSED 1,3,5,6,7 & 8 -------------------------------------------- 1. THE STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRASANNABABU, S/O. KUMARAN, KARTHIKA, CHITTATTINKARA DESOM, AVANAVANCHERY VILLAGE, THIRUVANANTHAPURAM DISTRICT. 3. SHASHAKAN, S/O. JANARDHANAN, 'KESAVAMANDIRAM', CHITTATTINKARA DESOM, AVANAVANCHERY VILLAGE, THIRUVANANTHAPURAM DIST. 4. MOHANAN, S/O. KOCHUKRISHNAN, AMBALATHUMAVATHUKKAL HOUSE, ALANGODE VILLAGE, MANARKAL DESOM, THIRUVANANTHAPURAM DIST. 5. RAJU, S/O. KUMARAN, "RINKU NIVAS", CHITTATTINKARA DESOM, AVANAVANCHERY VILLAGE, THIRUVANANTHAPURAM DIST. 6. SUDHARMA, D/O. DEVADASAN, KADAKKASSERY, KADAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DIST. 7. MADHU, KADAKKASSERY, KADAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DIST. 8. THE SUB-INSPECTOR OF POLICE, ATTINGAL POLICE STATION. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB SRI.TOM K.THOMAS FOR R2-7 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.300 of 2008 ---------------------------------------- Dated this the 25th day of June 2008 O R D E R The petitioner is the de facto complainant in crime No.5/08 of Attingal police station. That crime was registered on the basis of a private complaint filed by the petitioner which was referred by the learned Magistrate to the police under Section 156(3) Cr.P.C. 2. The crux of the allegations against the accused persons is that the de facto complainant who was obliged to abscond apprehending action against him in a crime had entrusted certain articles/properties to the accused persons, who did not faithfully return the same to the de facto complainant when he returned. Accused 1,3 and 5 to 8 had come to this court with an application for anticipatory bail and by an order dated 17/1/2008 in B.A.No.261/2008, the said application for anticipatory bail was allowed subject to conditions. Inter alia it was directed that the accused/petitioners must surrender before the learned Magistrate on 24/1/2008 and execute bonds. Crl.M.C.No.300/08 2 Further conditions were imposed obliging the petitioners in the bail application to appear before the investigating officer on 25/1/2008 and 28/1/2008 between 10 a.m and 3 p.m and thereafter between 10 a.m and 12 noon for a further period of two months on all Mondays and Fridays. Thereafter they were directed to appear before the investigating officer as and when directed to do so in writing by the investigating officer. The petitioner had come to this court on 22/1/2008 with a prayer that the anticipatory bail granted in favour of those petitioners/accused may be cancelled. 3. What is the reason? Cancellation of bail is an exceptional harsh remedy which the law prescribes and such powers to cancel the bail shall be invoked by the court only if compelling and exceptional reasons are shown to exist. To a pointed query as to the grounds on which such relief is claimed, the learned counsel for the petitioner submits that anticipatory bail was not granted properly and in accordance with law. That contention cannot be raised in an application for cancellation. If the petitioner is aggrieved by the order granting anticipatory bail his remedy lies elsewhere. He cannot seek Crl.M.C.No.300/08 3 cancellation of bail on the ground that the discretion was not exercised by the court correctly. 4. The learned counsel for the petitioners next contends that accused 7 and 8 have not so far appeared before the learned Magistrate as insisted by condition (a) in the anticipatory bail order. If they have not done so, condition No.(c) clearly stipulate that the police can thereafter arrest the petitioners and deal with them in accordance with law. Non-compliance with condition (a) entails the consequence of the accused persons not being able to claim the benefit of the anticipatory bail order. So far as accused 7 and 8 are concerned consequent to their non- compliance with the direction to appear before the learned Magistrate on 24/1/2008, there is no order of anticipatory bail now and there is hence no need of canceling the anticipatory bail granted to them. 5. So far as the other petitioners/accused are concerned, the learned counsel for the petitioners contends that effective opportunity for interrogation is not made available and hence the order of bail may be cancelled. I find no merit in this contention also as there was specific direction that the petitioners/accused Crl.M.C.No.300/08 4 must make themselves available for interrogation before the investigating officer between 10 a.m and 3 p.m on 25/1/2008 and 28/1/2008 and between 10 a.m and 12 noon for a further period of two months and subsequently as and when directed by the investigating officer in writing to do so. In these circumstances, the grievance that the order granting anticipatory bail deprives the investigating officer of an opportunity to interrogate the petitioners/accused is also found to be without any merit. I do further note that another Bench of this court while dealing with this Crl.M.C on 24/3/2008 had further directed the accused persons to appear before the investigating officer and make themselves available for interrogation on 01/4/2008. The said contention cannot also in these circumstances succeed. 6. To sum up, I do not find any reason that can persuade this court to cancel the order of anticipatory bail already granted to the petitioners/accused in the anticipatory bail application. Accused 7 and 8, as already observed, are not entitled for protection of the anticipatory bail order now, they having not complied with the terms of the said order. Crl.M.C.No.300/08 5 7. The learned counsel for the petitioners airs a further grievance that no proper investigation is being conducted. The petitioners can in compliance with the dictum in Sakiri Vasu v. State of U.P & Others [2008 AIR SCW 309] which has been followed in Vasanthi Devi v. Sub Inspector of Police [2008(1) KLT 945] approach the learned Magistrate with appropriate application under Section 156(3). For that reason also, the anticipatory bail already granted does not deserve to be cancelled. 8. This Crl.M.C is in these circumstances dismissed with the above observations. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.300/08 6 Crl.M.C.No.300/08 7 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007