IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 Bail Appl..No. 7979 of 2008(F) ------------------------------------- AGAINST THE ORDER IN BA.5375/2008 CRMP.2134/2008 OF SESSIONS COURT, ALAPPUZHA CRIME NO.488/2008 OF THE CHERTHALA POLICE STATION .................... PETITIONER/ACCUSED : ----------------------------- MADHUKUTTAN, S/O. PANKAJAKSHAN PILLAI, AGED 36 YEARS, MADHURIMA, PALLIPPURAM PANCHAYATH, PALLIPPURAM P.O. CHERTHALA. BY ADV. SRI.C.K.SAJEEV RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ---------------------------------- B.A. No.7979 OF 2008 ---------------------------------- Dated this the 11th day of February, 2009 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 454, 461 and 380 of I.P.C. According to prosecution, the petitioner allegedly committed theft of 4.5 sovereigns of gold ornaments from the house of the defacto complainant and a complaint was lodged by him alleging strong suspicion against the petitioner who is his neighbour. 3. Learned Public Prosecutor submitted that earlier application for anticipatory bail was dismissed by this court as per order dated 04.09.2008 in B.A.No.5375 of 2008 after considering all the rival contentions in detail (vide Annexure 2). The crime was registered as early as on 20.07.2008 and seven months have elapsed, but petitioner has not made himself available for interrogation or investigation. In the nature of the offences committed, petitioner's interrogation is required and hence, this is not a fit case for granting anticipatory bail, it is submitted. B.A.No.7979 of 2008 2 4. On going through the petition, it is seen that petitioner has taken up very same contentions again. It is also contended that the seizure of the article is effected and the investigation is not so far concluded and hence, anticipatory bail may be granted. Learned counsel for petitioner submitted that in the decision reported in Joginder Kumar V. State of U.P. and Others (AIR 1994 SC 1349), it is held that even though arrest of a person is legal, it can be effected only for valuable purposes and if it is absolutely necessary. In this case, petitioner is not required for recovery under Section 27 of the Evidence Act and hence, petitioner's arrest is not required. 5. Considering the rival contentions and on going through Annexure 2 order, I am satisfied that there is nothing more to be looked into. I have considered all the contentions raised by petitioner in detail in Annexure 2 order. I have come to a finding in the nature of the allegations made and in the light of the evidence already collected, it may not be proper to grant anticipatory bail to petitioner. I have rejected all the contentions raised by petitioner. I am satisfied that by entertaining this petition, if anticipatory bail is granted, it will B.A.No.7979 of 2008 3 amount to review of the order which is barred under Section 362 Cr.P.C. Hence, I am not inclined to grant anticipatory bail, especially since on consideration of the entire facts and circumstances, this court has already come to a finding that this is not a fit case to grant anticipatory bail. 6. It is clear that petitioner was absconding for the past so many months and to such a petitioner, discretionary relief under Section 438 Cr.P.C. cannot be extended. This is a case where, at least at the time of disposal of the earlier application, petitioner was aware that he is wanted by the police for the purpose of investigation in this crime and still, he has not surrendered to law. To such a person, the relief under Section 438 Cr.P.C. cannot be granted. 7. This is a case where petitioner has committed an offence under Section 461 I.P.C. and for the purpose of ascertaining the facts which are within the exclusive knowledge of the petitioner relating to offence under Section 461 I.P.C., petitioner's interrogation will be required for an effective investigation. On the facts and circumstances, the following order is B.A.No.7979 of 2008 4 passed : i) Petitioner shall surrender before the investigating officer forthwith and co-operate with the investigation. Whether he surrenders or not, police is at liberty to arrest him and proceed in accordance with law. The decision cited by petitioner's counsel may also be looked into, to decide if arrest is essential or not. ii) No further application for anticipatory bail by petitioner in this crime will be entertained. The petition is dismissed. K.HEMA, JUDGE pac