IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 21ST DECEMBER 2011 / 30TH AGRAHAYANA 1933 Bail Appl..No. 6605 of 2011 CRIME NO.522 OF 2011 OF HARIPAD POLICE STATION, ALAPPUZHA DIST. PETITIONER/IST ACCUSED ------------------------------------------ SAJEEV.K.K., AGED 45 YEARS, S/O.KUTTAPPAKURUP, KADAKKAL PEEDIKAYIL, PENNUKKARA.P.O., CHENGANNUR. BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD SRI.ONEAL SABU RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER, HARIPAD POLICE STATION, HARIPAD. (THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM) STATE PROSECUTOR SRI.T.ASAF ALI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 6605 OF 2011 ------------------------------------------------------ Dated this the 21st day of December, 2011 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.1 in Crime No.522 of 2011 of Haripad Police Station, Alappuzha District. 2. The offences alleged against the accused are under Sections 332 and 392 read with Section 34 of the Indian Penal Code. 3. The prosecution case is the following: On 12.7.2011, as per the order passed by the Court of the Munsiff of Haripad in E.P.No.50 of 2010 in O.S.No.242 of 2007, the defacto complainant, the Amin of the Court, attached a tanker lorry. After attachment, he was waiting in front of the lorry for police help. At that time, the accused persons forcibly entered into the lorry and drove away the vehicle. It is alleged that the acts of the accused caused obstruction to the discharge of official duties by the defacto complainant. BAIL APPL. NO.6605 OF 2011 :: 2 :: 4. Learned counsel for the petitioner submitted that one Dinesh obtained a decree against Deepa, wife of the first accused, and the Indian Oil Corporation for money. That decree was under challenge in A.S.No.157 of 2010, on the file of the Court of the Additional District Judge I, Mavelikkara. On 22.6.2011, an order of stay of execution was passed by the appellate court. Suppressing the stay order dated 22.6.2011, the same counsel who appeared for the decree holder before the appellate court filed an application for attachment on 24.6.2011 and the lorry was ordered to be attached. It is also stated that the lorry did not belong to the judgment debtor. It was transferred to accused No.2 by the judgment debtor as per the agreement dated 14.10.2010. 5. It is true that after passing the stay order by the appellate court on 22.6.2011, the decree holder was not entitled to move for attachment of the lorry on 24.6.2011. However, it would appear that the stay order was not communicated to the executing court. There was no material before the executing court to show that the appellate court had granted stay. The Amin had only implemented the order BAIL APPL. NO.6605 OF 2011 :: 3 :: passed by the Court. Amin is not a person who can decide the question of title to the property. He attached the lorry. If accused No.2 had any claim that he is the owner of the lorry, he could very well move the executing court. It could also be pointed out before the executing court that the attachment was effected at a time when stay was granted by the appellate court. Instead of doing so, the allegation is that the accused took the law into their hands and obstructed the discharge of official duties by the Amin. 6. In the facts and circumstances mentioned above, I am not inclined to exercise the discretionary jurisdiction under Section 438 of the Code of Criminal Procedure, in favour of the petitioners. However, it is to be noted that in case the petitioners are arrested or if they surrender before the Court, the Court dealing with the Bail Application would bear in mind that attachment of a lorry belonging to a third person was effected, quite contrary to the stay order passed by the appellate court and that such a situation was created by the decree holder who was a party to the appeal in which stay was granted. The application for attachment was moved after the order of stay was granted by the appellate court. In the facts and BAIL APPL. NO.6605 OF 2011 :: 4 :: circumstances, the learned Magistrate shall exercise the discretion appropriately in spite of the fact that the offence alleged against the petitioners is grave in nature. The Bail Application is disposed of as above. (K.T.SANKARAN) Judge ahz/