IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 Bail Appl..No. 3755 of 2010() --------------------------------- CRIME NO. 129/2010 OF KUMBLAKADAVU POLICE STATION ................... PETITIONER/ACCUSED : --------------------------- 1. ABDUL SALAM, AGED 36 YEARS, S/O. KHADER, PALLATHU HOUSE, KALPETTA, WAYANADU DISTRICT. 2. ABDUL ZAZAR.T, AGED 43 YEARS, S/O. KUNJUMOHAMMED, THONDIYIL HOUSE, KALPPETA. 3. JASHAD.K, AGED 30 YEARS, S/O. IBRAHIM, KANAPARAMBIL HOUSE, KALPETTA.P.O. BY ADV. SRI.SAJIV.C.K. RESPONDENT/COMPLAINANT: ----------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, KUMBLAKADAVU POLICE STATION, WAYANADU DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SRI. V. TEKCHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. --------------------------- B.A. No. 3755 of 2010 ------------------------------------ Dated this the 24th day of June, 2010 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Sections 353, 506(1) read with Section 34 of the Indian Penal Code. According to prosecution, the de facto complainant who is a Village Officer under the instruction from Sub Collector went to the place of occurrence to take JCB into custody which was used for illegal excavation of soil. On reaching the spot on 17.05.2010 at about 1.30 P.M., petitioners 1 to 3 criminally intimidated the de facto complainant and caused obstruction to him in discharging official duty and thereby committed various offences. 3. Learned counsel for petitioners submitted that the alleged incident occurred on 17.05.2010 and F.I.R was registered only on the next day. The Village Officer came to the place of occurrence and wanted to seize the J.C.B into custody, on the ground that it was used for illegal excavation of sand. All what happened was that the petitioners requested the Village Officer to issue a receipt for taking the J.C.B into custody but he failed to do so. There was some talk on this, but petitioners have not commit any offence B.A. No. 3753 of 2010 2 except for insisting a receipt. 4. A Writ Petition was also filed stating all these details and a prayer was made to direct the authorities to release the J.C.B. In the Writ Petition, it is specifically stated that no receipt was issued and it was admitted that no receipt was issued. Now proceedings under Section 107 of the Code of Criminal Procedure are initiated against the petitioners without any basis. They are not involved in any offence earlier and proceedings are unsustainable. 5. This petition is opposed. Learned Public Prosecutor submitted that this is the second application for anticipatory bail. Petitioners could have put forward all the contentions in the earlier application at the time of hearing, but the only submission made was that petitioners were apprehending arrest and that a Writ Petition was filed, without mentioning any further details about the Writ Petition. It is also pointed out that though petitioners would content that the dispute arose because of non issuance of receipt by the Village Officer and that the respondent admitted that receipt was not issued, petitioners have not even today, produced any materials or pointed out any circumstance to show that the officials admitted non issuance of the receipt. B.A. No. 3753 of 2010 3 The allegations made against petitioners are serious in nature, when Village Officer came to the spot as per the instructions from Sub Collector to take J.C.B into custody as accused were engaged in illegal excavation of soil, he was prevented by the accused from doing so. 6. On hearing both sides, I find that the only contentions raised in the earlier application filed by petitioners, at the time of hearing are as follows: Learned counsel for the petitioner submitted that petitioner is apprehending arrest in a non bailable offence and hence he may be granted anticipatory bail. A Writ Petition was filed and it is pending before this court. 7. It can also be seen that the petitioners counsel would submit that the officials admitted during the pendency of the Writ Petition that the receipt was not issued. This fact is disputed by respondents. But there is absolutely nothing on record to show whether respondent admitted non-issuance of receipt. At any rate, there can be no doubt that all the contentions which the petitioners have taken now could have been taken by the B.A. No. 3753 of 2010 4 petitioners at the time when the earlier application for anticipatory bail was considered. Petitioners were not responsible to place all the relevant facts before the court when the earlier application for anticipatory bail was filed. They are also guilty of same latches while filing this second petition also. 8. The relief under Section 438 of the Code of Criminal Procedure is a discretionary relief and I am satisfied, on the facts and circumstances of the case that petitioners does not deserve any relief under Section 438 of the Code of Criminal Procedure. I do not think that this is a fit case to grant anticipatory bail. No grounds are made out to grant the relief even in this second application. The allegations made in this case are serious in nature and petitioners are bound to surrender before the investigating officer or the Magistrate Court concerned without delay and co-operate with the investigation. Hence, the following order is passed: 1. The petitioners shall surrender before the investigating officer or the Magistrate Court concerned without any delay and co-operate with the investigation. B.A. No. 3753 of 2010 5 2. No further application for anticipatory bail by the petitioners in this crime shall be entertained by this court. Petition is dismissed. K. HEMA, JUDGE ln