IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 24TH MARCH 2008 / 4TH CHAITHRA 1930 Bail Appl..No. 936 of 2008() ---------------------------- CRMP.5163/2007 of DISTRICT COURT, THODUPUZHA CRIME NO.986/07 OF THODUPUZHA POLICE STATION .................... : PETITIONER/ACCUSED: ------------------------------------ 1. PRAVEEN KUMAR, AGED 28 YEARS, DEPUTY MANAGER, KOTAK MAHINDRA BANK LTD.,COCHIN. 2. SUNNY, S/O. STEPHEN, AGED 51 YEARS, CHARALIL HOUSE, KEERIKODE KARA, KARIKODE VILLAGE, THODUPUZHA TALUK. 3. ANOOP, S/O. SUNNY, AGED 27 YEARS, CHARALIL HOUSE, KEERIKODE KARA, KARIKODE VILLAGE, THODUPUZHA TALUK. 4. K.B. VIJAYAKUMAR, AGED 27 YEARS, KOTTIYALA HOUSE, ASHOKAPURAM P.O, ALUVA. BY ADV. SRI.SOORAJ T.ELENJICKAL SRI.M.A.JOSEPH MANAVALAN RESPONDENTS: COMPLAINANT: ------------------------- STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE, THODUPUZHA POLICE STATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24/03/2008 ALONG WITH B.A.NO.1510 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.Nos.936 and 1510 of 2008 ------------------------------------- Dated this the 24th day of March, 2008 ORDER These applications are for anticipatory bail in a crime registered alleging offences punishable, inter alia, under Section 395 I.P.C. The learned Public Prosecutor submits that petitioners 1 and 2 in B.A.No.1510 of 2008 are accused 3 and 4 and petitioner 4 in B.A.No.936 of 2008 is the 5th accused in that crime. Altogether there are 6 accused persons in that crime. Accused 1 and 6 have already been arrested and enlarged on bail. Accused 3, 4 and 5 are required to be arrested. So far as the other petitioner is concerned, the learned Public Prosecutor submits that at the moment they are not arrayed as the accused and they are not required to be arrested. Investigation is in progress and the possibility of he being arrayed as accused at a later stage cannot be ruled out, submits the learned Public Prosecutor . 2. The crux of the allegations against accused persons is that they forcibly dispossessed the defacto complainant and took away a lorry, a lorry load of sand and an amount of Rs.12,000/- which were available in the vehicle. The alleged incident took B.A.Nos.936 and 1510 of 2008 2 place on 21.12.07. The crime was registered on 23.12.07. Investigation is in progress. The lorry, according to the defacto complainant, was later recovered in an abandoned condition on the same date. 3. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. No element of the offence under Section 395 I.P.C is at all revealed from the facts situation. There was a hypothecation agreement in respect of the vehicle. There was a provision for seizure of the vehicle in the event of default. The vehicle was repossessed in terms of the said hypothecation agreement. But the repossessed vehicle was forcibly taken away from the possession of those who repossessed the vehicle. A private complaint was filed in respect of that culpable conduct. It was referred to the police. A crime was registered. Thereafter the present allegations have been raised in this crime, submits the learned counsel for the petitioners. The learned counsel for the petitioners submits that the allegations of theft of sand and currency notes and of the vehicle being abandoned are all false and fanciful. Those allegations are being raised vexatiously. A bona fide seizure of the vehicle is attempted to be pictured as theft, robbery and B.A.Nos.936 and 1510 of 2008 3 dacoity. The petitioners may be granted anticipatory bail, it is prayed. 4. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the financier himself does not have any such powers for forcible repossession. There is nothing to show that any of the accused was acting at the behest or as authorised by the financier. Even such authorisation cannot obliterate culpable liability. Not only the vehicle, but also the load of sand as also the currency notes were forcibly taken away. In any view of the matter, the petitioners do not deserve to be armed with an order of anticipatory bail. They may be directed to resort to the ordinary and normal procedure of appearing before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail, submits the learned Public Prosecutor . 5. Having considered all the relevant inputs, I find merit in the opposition by the learned Public Prosecutor. I am not persuaded to agree that there are any features in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioners B.A.Nos.936 and 1510 of 2008 4 must appear before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. 6. These applications are, in these circumstances, dismissed, but I may hasten to observe that if the petitioners surrender before the Investigating Officer or the learned Magistrate and apply for 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. (R.BASANT, JUDGE) rtr/-