IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Bail Appl..No. 6165 of 2009() ----------------------------- CRIME NO.1565/09 OF KOTTARAKARA POLICE STATION .................... PETITIONER(S): ACCUSED ------------------------------------- B.BRIJESH, S/O.BALAKRISHNA PILLAI, AGED 33 YEARS, RESIDING AT AISWARYA, PADINJATTINKARA MURI, KOTTARAKKARA VILLAGE, KOLLAM. BY ADV. SRI.N.UNNIKRISHNAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KOTTARAKKARA, KOLLAM DISTRICT. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.6165 of 2009 --------------------------------------------- Dated this the 27th day of October, 2009 ORDER This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the accused in Crime No.1565 of 2009 of Kottarakara Police Station. 2. The offences alleged against the petitioner are under Sections 420 and 408 of the Indian Penal Code. 3. The prosecution case is the following: The petitioner was working as the Postal Assistant. During the period from 27.5.2004 to 26.1.2007, he made several entries in the passbooks of the customers with respect to receipt of various amounts, but, did not account the same in the Post Office. Thus, there was a misappropriation of Rs.72,393/-. 4. In the FI statement, it is also stated that the petitioner was suspended from service and later, removed from service. The learned counsel for the petitioner submitted that the suspension and removal from service were on account of different set of facts. It is also submitted that a revision is being filed by the petitioner against the order of removal from service. BA No.6165/2009 2 5. The learned counsel for the petitioner submitted that the period during which the offence is alleged to have been committed ranges from 27.5.2004 to 26.1.2007. The F.I. Statement was filed only on 1.10.2009. He referred to the FI statement wherein it is stated that where the misappropriation relates to an amount of more than Rs.10,000/-, it is necessary to inform the police about the same and that is why the FI statement is being lodged. 6. The learned counsel for the petitioner also submitted that the initiation of criminal proceedings after a lapse of several years and that too on vague allegation amounts to abuse of process of law and setting the criminal law in motion in the present case was not bonafide. It is also submitted that freedom of a citizen cannot be curtailed by initiating such a criminal action. It is also submitted by the learned counsel for the petitioner that the petitioner belongs to a reputed family in Kottarakara. His father retired as Assistant Director of Health Services and his mother was working as Sub Divisional Engineer in Telecom Department. She also retired from service. It is also submitted that at present, the petitioner is a student as well as a BA No.6165/2009 3 teacher in Electronics. He has to support his wife and child. He is young. 7. The learned counsel for the petitioner also submitted that the ingredients of Section 420 and 408 IPC are not satisfied in the present case and therefore, the initiation of criminal proceedings and the consequent attempt to arrest the petitioner would be illegal. 8. Section 468 of the Code of Criminal Procedure provides for the bar to take cognizance after the lapse of the period of limitation. Sub Section (2) of Section 468 of Crl.P.C. deals with the period of limitation. The bar of limitation applies in respect of offences punishable up to three years. Section 408 IPC is punishable with imprisonment for a period of seven years. So also, the offence under Section 420 IPC is punishable with imprisonment for seven years. Therefore, the contention of the petitioner that there is long delay and therefore, initiation of criminal proceedings is baseless, is without substance. 9. The submission of the learned counsel for the petitioner that there was no reason why proceedings were not initiated till 2009, in respect of the incident which allegedly BA No.6165/2009 4 occurred from 2004 to 2007, would also be not an adequate reason for supporting his plea for anticipatory bail. 10. The contention that the ingredients of Sections 408 and 420 IPC are not made out, prima facie, does not appear to be correct. On a perusal of the FI statement, prima facie, I am of the view that sufficient grounds are made out for initiation of criminal proceedings against the petitioner. The question whether the offence is made out on the proved facts and circumstances of the case is a matter to be taken into account at the time of trial and the final disposal of the case. No finding on the merits would be arrived at while disposing of an application for anticipatory bail. 11. That the petitioner belongs to a reputed family is not a ground for taking a view in his favour for granting anticipatory bail. The financial status or family history of an accused is not relevant at all in considering his application for anticipatory bail. I reject the contention raised by the petitioner on this ground. 12. The offence alleged against the petitioner is very serious. Post Office is an institution accessible to the general public. Most of the depositors would be ordinary people. They BA No.6165/2009 5 find the Post Offices as a safe place in their own village to deposit various amounts at recurring intervals. They must be able to ensure that the money deposited by them is available in their accounts. The allegation is that the petitioner did not account the amounts received from the customers, in the account of the Post Office. That means the depositors were to sustain loss. It would result in lack of faith by the people in the institution of Post Offices. A person who is alleged to have indulged in an offence of this nature cannot plead, as of right, that he should be granted anticipatory bail. Then the question is whether the discretionary relief under Section 438 should be extended in favour of the petitioner. Taking into account the facts and circumstances of the case, I do not think that the petitioner is entitled to get the discretionary relief. For the aforesaid reasons, the Bail Application is dismissed. K.T.SANKARAN, JUDGE csl