IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Bail Appl..No. 7633 of 2008() ----------------------------- CRIME NO.2380/2008 OF CENTRAL POLICE STATION, ERNAKULAM PETITIONERS/ACCUSED 1 & 2 --------------------------------------------- 1. P.M.SHAJI KHAN, SPECIAL OFFICER, EXTRA CARE (UNDER SUSPENSION),KERALA STATE CIVIL SUPPLIES CORPORATION,PETROL PUMP,D.H.ROAD, ERNAKULAM,RESIDING AT THOUFEEQIE,MAYINKARA PARAMBU ROAD,PONNURUNNY, VYTTILA, ERNAKULAM. 2. K.KOCHANIYAN, JUNIOR ASSISTANT/OFFICER IN CHARGE, (UNDER SUSPENSION), KERALA STATE CIVIL SUPPLIES CORPORATION RETROL PUMP, D.H.ROAD, ERNAKULAM, RESIDING AT AYYATTU, "BHAVANA" IRIMPANAM (P.O.)TRIPUNITHURA, ERNAKULAM, PIN: 682309. BY ADV. SRI.NAGARAJ NARAYANAN SRI.RAJAN VELLOTH SRI.A.S.SABU SRI.BENOJ C AUGUSTIN RESPONDENT(S): STATE -------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.7633 of 2008 --------------------------------------------- Dated this the 2nd day of November, 2009 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No.2380 of 2008 of Central Police Station, Ernakulam. 2. The offence alleged against the petitioners is under Section 409 read with Section 34 of the Indian Penal Code. 3. The Bail Application was filed on 10.12.2008. On many occasions, the petitioner sought adjournments and on many occasions, the petitioners were absent. Thus, the petitioners could stall the investigation for several months. As the case diary file was handed over to the Public Prosecutor, the investigating agency could not proceed with the investigation. This reflects a sorry state of affairs. 4. The petitioners are respectively the Special Officer attached to the petrol bunk of the Civil Supplies Corporation, D.H.Road, Ernakulam and the Officer-in-charge therein. The allegation is that during the period from 1.4.2008 to 21.11.2008, BA No.7633/2009 2 there was a shortfall of various items of petroleum products causing a loss of Rs.4,74,986/- to the Civil Supplies Corporation. The allegation is that the petitioners have caused breach of trust and loss to the Corporation. 5. The contention of the petitioners is that though the shortage related to the period from 1.4.2008 to 21.11.2008, the shortage cannot be attributed to the petitioners as such since the first petitioner took charge only on 22.7.2008 and second petitioner took charge only on 8.7.2008. It is submitted that there was no investigation in respect of the shortage during the period in which the petitioners were working as Special Officer and Officer-in-charge respectively. The shortage could well be attributed to the period before the dates on which they took charge. It is also contended by the learned counsel for the petitioners that while preparing Annexure A4 report, the officers of the Corporation have taken into account the percentage of the admissible shortage only at 0.3% and 0.2%. The petitioners submit that as per the Exts.A5 and A6 Government orders, the admissible percentage of shortage could be much more. 6. The learned Public Prosecutor submitted that the FIR BA No.7633/2009 3 was registered by Central Police Station, Ernakulam and now, the investigation is handed over to the Vigilance Department. It is also submitted that the Vigilance Department could not make any investigation since the records were handed over to the Public Prosecutor on account of the filing of the application for anticipatory bail. It is submitted by the learned Public Prosecutor that the petitioners would be arrested only on the investigating officer satisfying himself that the petitioners are prima facie guilty of the offence. The Bail Application is closed recording the aforesaid submission made by the learned Public Prosecutor. It is submitted that if there is prima facie evidence to show that the petitioners are guilty, the investigating officer would issue a notice to the petitioners, so that the petitioners can seek appropriate remedies. The Bail Application is accordingly closed recording the above submissions made by the learned Public Prosecutor and leaving open the right of the petitioners to approach this Court again as and when occasion arises. K.T.SANKARAN, JUDGE csl