IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 Bail Appl..No. 311 of 2008() ---------------------------- CRIME NO. 780/07 OF KOTTIYAM POLICE STATION APPLICANTS/ACCUSED ----------------------------------- 1. LALU, AGED 30 YEARS, S/O.SADANANDHAN, THUNDUPOIKA THODIYIL, THAZHUTHALA CHERRY, ADICHANALLOOR VILLAGE, KOTTIYAM. 2. DASAN, AGED 49 YEARS, S/O.JOSEPH, SHEEBA BHAVAN, THAZHUTHALA CHERRY, ADICHANALLOOR VILLAGE, KOTTIYAM. 3. SHAJI @ SHAJAHAN, AGED 40 YEARS, S/O.PAREED KUNJU, VILAYIL PUTHEN VEEDU, THAZHUTHALA CHERRY, ADICHANALLOOR VILLAGE, KOTTIYAM. 4. UNNUNNI @ UNNI, AGED 42 YEARS, S/O.JOSEPH, THUNDUPOIKA THODIYIL, THAZHUTHALA CHERRY, ADICHANALLOOR VILLAGE, KOTTIYAM. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 311 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of February, 2008 O R D E R Application for anticipatory bail. The petitioners face allegations in a crime registered for offences punishable, inter alia, under Section 379 I.P.C. and Section 3(1) of the P.D.P.P. Act. The crux of the allegations against the petitioners is that they have been extracting sand illegally from the Puramboke property near their residential building. Crime has been registered on the basis of a complaint filed by the Village Officer of Adichanalloor Village dt. 22.12.2007. The Village Officer does not claim to have witnessed the commission of the offence, but his grievance as can be ascertained from the complaint is that extraction of sand has been going on in the property for a long period of time resulting in damage to the puramboke land belonging to the government. 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. They are owners of adjacent B.A.No. 311 of 2008 2 properties. Their interests are substantially affected by the illicit sand mining taking place in the adjacent properties. This had obliged them to file complaint before the authorities and they were forced to take action against the persons extracting sand. Crime 599 of 2007 was registered on 16.10.2007 on the basis of such pro-active action on the part of the petitioners. The accused in that crime are influential persons and at their instance on 24.12.2007 the present complaint has been filed. Both crimes relate to the very same puramboke land. In the first crime it is specifically alleged that the accused therein have extracted the sand and reduced the land to a Vellakettu. In the subsequent crime registered on 24.12.2007 it is alleged that extraction of sand is continuing and the petitioners are the persons responsible for such extraction. The sum and substance of the contention of the petitioners is that at the instance of the accused in Crime 599 of 2007, false allegations are now raised against them. 3. The learned Prosecutor opposes the application. He submits that the petitioners are also responsible for the subsequent extraction of sand and that is the complaint raised in the present crime. He submits B.A.No. 311 of 2008 3 that the petitioners may be directed to surrender before the Investigating Officer or the learned Magistrate and there are no circumstances to justify the invocation of the discretion under Section 438 Cr.P.C. in favour of the petitioners. 4. In the nature of the contentions raised, it was felt that perusal of the case diaries in Crime No.559 and 780 of 2007 is necessary. The case diaries are made available. Though the case diary in Crime 599 of 2007 does not specifically show that the action in that was prompted by any complaint filed by the petitioners, I find force in the submission that in that crime also identical allegations were raised against the accused in that crime. The complaint in this crime shows that identical activity was going on even after registration of Crime No.599 of 2007. It is alleged that the petitioners are responsible for such indiscretion. At this early stage of investigation I shall not embark on any detailed discussion on merits about the acceptability of the allegations raised or the credibility of the data collected. Suffice it to say that on an anxious consideration of all other relevant circumstances, I am satisfied that the petitioners can be granted anticipatory bail, subject to appropriate B.A.No. 311 of 2008 4 conditions, which shall zealously ensure the interests of a fair, efficient and expeditious investigation. Notwithstanding the opposition of the learned Prosecutor, I am satisfied that anticipatory bail can be granted to the petitioners. 4. In the result: (1) This application is allowed. (2) The following directions are issued under Section 438 Cr.P.C. (a) The petitioners shall surrender before the learned Magistrate on 12.2.2008 at 11 a.m. The learned Magistrate shall release the petitioners on regular bail on condition that they execute bonds for Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (b) The petitioners shall make themselves available for interrogation before the Investigating Officer between 10 a.m. and 1 p.m. on 13.2.08 and 14.2.2008. During this period, the investigators shall be at liberty to interrogate the petitioners in custody and take all B.A.No. 311 of 2008 5 necessary steps in connection with the investigation. Thereafter they shall appear before the Investigating Officer on all Mondays and Fridays between 10 a.m. and 12 noon for a period of two months and subsequently as and when directed by the Investigating Officer in writing to do so. (d) If the petitioners do not appear before the learned Magistrate as directed in clause (1) above, these directions shall lapse on 12.2.2008 and the police shall be at liberty thereafter to arrest the petitioners and deal with them in accordance with law. (b) If the petitioners were arrested prior to their surrender on 12.2.2008 as directed in clause (1) above, they shall be released on bail on their executing bonds for Rs.50,000/- each without any surety undertaking to appear before the learned Magistrate on 12.2.2008. (R. BASANT) Judge tm