IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 Bail Appl..No. 43 of 2009 CRIME NO.1349 OF 2008 OF KADAVANTHARA POLICE STATION PETITIONERS: ACCUSED --------------------------- 1. THOMAS GEORGE, AGED 40, S/O.K.M. GEORGE, DOOR NO.CC 38/1896, PLOT NO.56, GANDHI NAGAR COLONY, KADAVANTHRA. 2. R.F. THOMAS, S/O. FEDERIC, ROSERY HOUSE, APOLO ROAD, PALARIVATTOM. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENTS: STATE/COMPLAINANT -------------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE SUB INSPECTOR OF POLICE, KADAVANTHARA POLICE STATION. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 43 OF 2009 ------------------------------------------------------ Dated this the 7th July, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are the accused persons in Crime No.1349 of 2008 of Kadavanthara Police Station. 2. The offences alleged against the petitioners are under Sections 405, 406, 409, 415, 417, 418, 420, 423 and 424 of the Indian Penal Code. 3. The gist of the prosecution case is that the first accused caused to publish advertisement in newspaper stating that his property was available for sale. The de facto complainant entered into an agreement for sale with the first accused and a sum of Rs.15 lakhs was paid as advance. On the date on which the agreement was entered into, the property was subject to attachment by civil court. Knowing fully well that there was attachment and that the first accused would not be entitled to transfer the property, the agreement was entered into. The petitioners moved for anticipatory bail before the learned Sessions Judge, which was dismissed by the Sessions Court, Ernakulam as per the order dated 27.12.2008 in Crl.M.C.No.2324 of 2008. B.A. NO. 43 OF 2009 :: 2 :: 4. I have gone through the case diary. I do not agree with the learned counsel for the petitioners that prima facie no offence is made out in the case. 5. However, the second petitioner/second accused is not the owner of the property. There is no case that he has received any amount as consideration. He was a witness to the agreement. The allegation is that he also participated in the negotiations. The case of the second accused stands on a different footing. 6. Taking into account the facts and circumstances of the case, I do not think that the first petitioner/first accused is entitled to get an order for anticipatory bail. However, I am of the view that the second petitioner/second accused can be granted anticipatory bail. There will be a direction that in the event of the arrest of the second petitioner, the officer in charge of the police station shall release him on bail for a period of one month on his executing bond for Rs.25,000/- with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: B.A. NO. 43 OF 2009 :: 3 :: a) The second petitioner shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays, till the final report is filed or until further orders; b) The second petitioner shall appear before the investigating officer for interrogation as and when required; c) The second petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; d) The second petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; e) On the expiry of the period mentioned above or even before that period, the second petitioner shall surrender before the Magistrate concerned and seek regular bail; f) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is dismissed in so far as it relates to the first petitioner and allowed in the manner indicated above in so far as it relates to the second petitioner. (K.T.SANKARAN) Judge ahz/