IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 Bail Appl..No. 1362 of 2008() ----------------------------- CRIME NO.92/08 OF VIYYUR POLICE STATION PETITIONER: 10TH ACCUSED ----------------------------- SWAMI GOKULDAS, AGED 62 YEARS S/O.KRISHNAN KUTTY, PUZHAKKADAVIL HOUSE KANIMANGALAM VILLAGE, DO DESOM, TRICHUR DISTRICT PRESENTLY RESIDING AT THAPODHYAN ASRAMAM MULAMKUNNATHKAVU, TRICHUR. BY ADV. SRI.G.JANARDHANA KURUP (SR.) SRI.K.S.ARUN KUMAR SRI.C.K.SAJEEV RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KEALA ERNAKULAM. BY P.P. SRI. S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No.1362 of 2008 ------------------------------------------------- Dated this the 10th day of March, 2008 ORDER Application for anticipatory bail. The petitioner has been brought on the array of accused as the 10th accused in a crime registered initially under Sec.399 of the IPC. The Sub Inspector of the local Police Station came across 9 persons in a locality under suspicious circumstances in a Qualis vehicle on the night of 8/2/08. He intercepted them. They were interrogated. They had no valid explanation to offer as to why they were present at the scene. They had money available with them. They had mobile phones. It was also found that dangerous weapons were all kept ready in the vehicle. Some of the accused had questionable chronic record of criminal antecedents. On the reasonable belief that the accused were present in the locality for committing serious offences, they B.A. No. 1362 of 2008 -: 2 :- were taken into custody and the F.I.R. was registered under Sec.399 of the IPC. They were produced before the learned Magistrate along with a remand report dated 9/2/08. Even in the remand report, there is no specific mention of any confession made by any of the accused. There is not even a remote suggestion about the contumacious role, if any, of the petitioner in the FIR and the remand report. 2. It is the case of the police that the said accused were questioned. Information was collected from those accused about the complicity of the petitioner. Thus it was revealed that the miscreants, who were available in the car, had come to the scene of the crime allegedly at the instance of the petitioner. The petitioner is said to be a `Swami' running an Asram in the locality. The said Swami had certain disagreements, quarrels and disputes with the local inhabitants. The local inhabitants had allegedly raised objections and had protested against the activities of the Swami. They had allegedly caused damage and destruction to certain buildings belonging to the Swami. Interrogation of the co-accused revealed that they had come to the scene of the crime at the instance of the Swami. They had contacted the Swami earlier over the mobile phones and directly. Swami had paid them. They were mercenaries allegedly engaged by the Swami to retaliate against the persons B.A. No. 1362 of 2008 -: 3 :- who were ill-disposed to Swami and who had allegedly indulged in acts of causing damage and destruction to the buildings of the Swami. The mercenaries, who had a questionable record of criminal antecedents, were contacted by Swami through some others and they had reached the scene of the crime earlier on the same date. The petitioner – Swami, had allegedly received them in his Asram and he had also taken them round to spot the buildings which he wanted them to attack and plunder. Reports dated 9/2/08 were submitted to the court by the police to apprise the court that Sec.120B of the IPC was also involved and further to show that the petitioner was one of the conspirators and he must be arrayed as the 10th accused. Thus, the petitioner is there on the array of accused now as the 10th accused. Investigation is in progress. The petitioner apprehends imminent arrest. 3. According to the learned counsel for the petitioner, the petitioner is absolutely innocent. He is not in any way connected with the said crime. Some local leaders, politically relevant, have animosity towards the petitioner. Because of such animosity and because of the influence which they wielded with the police, false and vexatious allegations have been raised against the petitioner. The petitioner is a respectable person running an Asram. In the Asram he treats patients who have B.A. No. 1362 of 2008 -: 4 :- various skin ailments. The local people appear to resist the idea of the petitioner treating such patients. Because of this animosity, they are making wild allegations against the petitioner. The petitioner is a respectable person. He has no criminal antecedents. The petitioner does not deserve to endure the trauma of arrest and detention. He may be granted anticipatory bail, it is prayed. 4. The learned Public Prosecutor vehemently opposes the application. The learned Public Prosecutor submits that there are tell tale circumstances which reveal that the 9 accused persons in the car had reached the scene with no other purpose, except in response to the call of the petitioner. The accused persons have been interrogated. Their statements are available in the Case Diary. All that would show that the 1st accused was contacted by the petitioner – the 10th accused, and he had arranged men and materials and had reached the Asram only at the instance of the petitioner herein. The 1st accused had a prominent identification mark. He had a fracture of his forearm bone. It was put on a plaster. The petitioner had allegedly taken that person (A1) around to show him the target of attack. Many persons identified the 1st accused along with the petitioner herein near such places of residence of persons who were inimical to Swami – the petitioner. The learned Public B.A. No. 1362 of 2008 -: 5 :- Prosecutor submits that the totality of the circumstances convey eloquently and unmistakably that the petitioner had invited them to the scene of the crime in pursuance of a conspiracy to attack and plunder the houses of persons with whom the petitioner was on inimical terms. 5. The learned Senior counsel Sri. G. Janardhana Kurup argues that the police have not promptly raised any allegations against the petitioner after the arrest of A1 to A9. The learned counsel points out that in the remand report, no allegations whatsoever, like the ones raised now, have been raised at all. The learned counsel for the petitioner asserted that the learned Magistrate had not received any such reports including Sec.120B and arraying the petitioner. Consequently the report of the learned Magistrate was called for and the learned Magistrate has reported that both the reports – incorporating Sec.120B of the IPC and arraying the petitioner as the 10th accused, both, though dated 9/2/08, were received only on 15/2/08. This petition was filed only on 27/2/08. The learned counsel for the petitioner quoting from Sec.167 of the Cr.P.C. argues vehemently that the relevant details which are not shown in the remand reports are not worth the paper on which they are written and should be eschewed, discarded and ignored by this Court while considering this bail application. I have B.A. No. 1362 of 2008 -: 6 :- requested the learned Public Prosecutor to place the Case Diary before me for my perusal. I have perused the same. The Case Diary even on 9/2/08 reveals that the petitioner has been brought on array of accused as the 10th accused. His complicity was revealed to the Investigating Officer from 9/2/08 itself, it is seen from the Case Diary. 6. I have considered all the relevant inputs. At this early stage of the investigation, I shall not resort to the exercise of weighing the materials in golden scales. Complicated questions about the acceptability of the statements of witnesses or the credibility of the allegations against the accused cannot be gone into meticulously in detail at the stage of grant of anticipatory bail. Having considered all the relevant inputs, I am unable to find any features in this case that would justify or warrant the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. This, I am satisfied, is a fit case where the petitioner must co-operate with the Investigator. He must appear before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course. B.A. No. 1362 of 2008 -: 7 :- 7. Powers under Sec.438 of the Cr.P.C. are to be invoked sparingly and in exceptional cases in aid of justice. When the conscience of the court is satisfied that the powers of arrest which the State and its officials have are about to be misused or used with oblique or mala fide motives, such powers can certainly be invoked by a court. Such powers are certainly not to be invoked as a matter of course. I need only mention that I do not find any compelling reasons in this case to justify such invocation. 8. In the result, this bail application is dismissed; but with the observation that if the petitioner surrenders before the Investigating Officer or the learned Magistrate and seeks bail, after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass appropriate orders on merits and expeditiously. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge B.A. No. 1362 of 2008 -: 8 :-