IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 Bail Appl..No. 7460 of 2008(B) -------------------------------------- CMP.4540/2008 of J.M.F.C.-I, KANNUR CRIME NO.221/2007 OF KANNUR TOWN POLICE STATION .................... PETITIONER/ACCUSED A-3 : ---------------------------------- M.MANODATH @ MANOJ, S/O.ANANDA ACHARYA, AGED 35 YEARS, ANATHA CHANDRA SADANA, KAIKAMBA, UPPALA VILLAGE AND POST, KASARAGOD TALUK BY ADV. SRI.SAIBY JOSE KIDANGOOR SRI.K.ANAND RESPONDENTS/STATE & COMPLAINANT : -------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, KANNUR TOWN POLICE STATION. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------ B.A. No.7460 OF 2008 ------------------------------ Dated this the 9th day of December, 2008 O R D E R This petition is for bail. 2. According to prosecution, 32 sovereigns of gold ornaments were stolen from the house of the defacto complainant by breaking open the back door of the house. First accused committed theft and he sold gold ornaments to second accused, who in turn sold them to third accused. Petitioner is third accused in the crime. 3. Learned counsel for petitioner submitted that petitioner was taken into custody by police from his jewellery shop on 11.11.2008. Petitioner's wife filed complaints against the action of the police in arresting him for no reason, before the Human Rights Commission and various other authorities, on coming to know that the petitioner was taken into custody by the police from his jewellery shop at 11.11.2008 at about 10.30 a.m. Since those petitions did not achieve any result, she filed a private complaint on 13.11.2008 before the Magistrate Court and the copy is Annexure A. Thereafter, she also filed a petition as Annexure B under Section 97 of Cr.P.C. for search B.A.7460 of 2008 2 through an Advocate. 4. Though search warrant was issued by the court and an Advocate of the Kasargode Bar went to the police station and found the petitioner in the police station on 15.11.2008, he could not be taken into custody by the Advocate, as directed by the court, since the Circle Inspector intervened and resisted the same. Therefore, he filed a report as Annexure C before the Magistrate court narrating the whole details. The Commissioner in Annexure C reported that he could not produce the detenue before the court as directed, since he was taken away by the Circle Inspector of Police, without any intimation to the Commissioner. As per the report, when the Commissioner found the accused inside the police station and he made enquiries relating to the documents pertaining to his custody, the Sub Inspector of Police told him that the records were with the Circle Inspector. He also reported that no records could be seen at the police station relating to his custody. 5. When the Commissioner was present in the police station, the Circle Inspector came to the station and took the B.A.7460 of 2008 3 accused away in the jeep, without explaining any reason for the removal of petitioner from custody. According to the Commissioner, the Sub Inspector told him that the accused was arrested by the Circle Inspector at 10 a.m. on 15.11.2008. It is also submitted that the police sought for custody of petitioner by police as per Annexure E petition. 6. In the affidavit filed by the Circle Inspector, it is stated that according to the second accused, the stolen articles resold to petitioner and it was handed over to him while he was brought from judicial custody to the Kasargod court. It is submitted that it is highly unlikely that the stolen articles which amounts to 32 sovereigns of gold ornaments would be handed over to the petitioner from the court premises while a co-accused was brought to the court from judicial custody. 7. It is submitted that the police is concocting evidence to book the accused in this case. It is pointed out that a worker of the petitioner was also taken into custody along with the petitioner but he was released on 15.11.2008, with a direction to produce 15 sovereigns of gold ornaments. This fact is also revealed from Annexure C, commission report. Though police B.A.7460 of 2008 4 custody is granted and petitioner was released to police custody by the Magistrate court, the recovery could not be effected, since petitioner has not committed any offence and he is not on receipt of any stolen article. It is also submitted that it appears from the affidavit and Annexure E petition that the arrest of petitioner was recorded only on 14.11.2008. The petitioner is absolutely innocent of the allegations made. He is a jeweller, who is running business in Kasargod and he is not involved any theft cases so far, it is submitted. It is understood that steps are taken to implicate petitioner in various other crimes of similar nature, since petitioner initiated action against the police for concocting evidence against the petitioner and falsely implicating him in criminal cases. 8. This petition is opposed. Learned Public Prosecutor submitted that the accused was arrested on 14.11.2008 and he was produced before the court on 15.11.2008. As per the instructions given, petitioner was not co-operating with investigation and hence the stolen article could not be recovered so far. It is also submitted that petitioner told the police that he would produce gold if it is undertaken that he B.A.7460 of 2008 5 will not be implicated in the offence. Therefore if petitioner is released on bail, at this stage, it will affect the investigation adversely and it will not be possible to recover the stolen articles, it is submitted. It is also submitted as per the instructions, petitioner is a professional receiver of stolen property and is an accused in series of theft cases at Manglore. On hearing both sides and on going through the records, I find that it is only fit to release the petitioner on bail. Though an allegation is made that the petitioner is involved in series of theft cases in Manglore, not even the number of any one of such cases could be mentioned by the police. In the result, it is hereby ordered that the petitioner shall be released on bail on his executing self bond for Rs.10,000/- to the satisfaction of the Magistrate court concerned. The petition is allowed. K.HEMA, JUDGE pac