IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Bail Appl..No. 381 of 2008() ---------------------------- CRLMC.27/2008 of D.C. & SESSIONS COURT,KOZHIKODE CRIME NO.2/08 OF THE VELLAYIL POLICE STATION .................... PETITIONER/ACCUSED NO.1 ---------------------------------------- NAINOOK C., S/O ASSAINAR, CHEKRI VALAPPU,VELLAYIL, KOZHIKODE DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENTS: STATE & COMPLAINANT -------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. THE STATION HOUSE OFFICER, VELLAYIL POLICE STATION, KOZHIKODE DISTRICT. BY PUBLIC PROSECUTOR SRI. JAI GEORGE. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 381 OF 2008 ------------------------------------------------- Dated this the 29th day of January, 2008 ORDER Application for anticipatory bail. The petitioner is the 1st accused in a crime registered for offences punishable, inter alia, under Sec.395 of the IPC. Altogether, there are 12 accused persons – 7 named and 5 not named. The petitioner is the 1st accused named in the F.I.R. It is alleged that the petitioner has been included in the rowdy list of the local Police Station. It is also submitted that the petitioner has criminal antecedents to his credit. The alleged incident took place on 21/12/07. The de facto complainant is said to be a person, who, in partnership with some others, runs an amusement park in the Calicut beach. On 21/12/07, while the amusement park was being run, the accused persons led by the petitioner allegedly took away employing force an amount of B.A. No. 381 OF 2008 -: 2 :- Rs.10,000/- from the collection that was made at the counters of the amusement park. This was allegedly taken away by the miscreants claiming that they are entitled for goonda money as the amusement park was done within their local area. The de facto complainant surprisingly did not make any prompt complaint. The complaint is seen lodged long later on 3/1/08. In that it is alleged that on 21/12/07 and thereafter on many occasions the gang led by the petitioner had caused hindrance and nuisance to the running of the amusement park. The miscreants had threatened the de facto complainant and others who were running the amusement park. Because of such threats and consequent fear, complaint could not be lodged promptly. Investigation has commenced. All the named accused persons claimed anticipatory bail before the learned Sessions Judge and the learned Sessions Judge has granted anticipatory bail to all the other applicants except the petitioner herein. The petitioner was not granted anticipatory bail on the ground that he has criminal antecedents. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. The de facto complaint and others responsible for the conduct of the amusement park enjoy political clout. They are affluent. The rules relating to the B.A. No. 381 OF 2008 -: 3 :- running of the amusement park were violated with impunity and the authorities succumbed to the influence and affluence of the de facto complainant. The local people alarmed by the dangerous manner in which the amusement park was being run without adequate safety precautions and without trained personnel, raised objections against the running of the amusement park. The petitioner on 21/12/07 had applied to the Corporation under the Right to Information Act for details regarding the legal authority under which the amusement park was being run and the permission was being granted to run the amusement park. It was realised then that they could not run the amusement park in accordance with law and that the petitioner on receipt of information will be raising valid objections against the running of the amusement park. The amusement part was hence shut down by 3/1/08 and it is after shutting down the amusement park that this strange complaint was belatedly lodged on 3/1/08. The learned counsel for the petitioner contends that certain police officials, who are inimical towards the petitioner and who have succumbed to the influence wielded by the de facto complainant – a political activist and an affluent person, are initiating vexatious proceedings against the petitioner. Earlier, crimes have been registered against the B.A. No. 381 OF 2008 -: 4 :- petitioner. Innocuous allegations are raised therein. At any rate, the registration of the earlier crimes is no reason to deny to the petitioner the right to anticipatory bail which has been conceded to the co-accused against whom the very same allegations are raised. The petitioner is a law abiding citizen. The only indiscretion committed by him is that he raised the voice of protest against the illegal running of the amusement park. The petitioner is willing to abide by any conditions. Anticipatory bail may be granted to him, prays the learned counsel for the petitioner. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the allegations against all the accused are perfectly justified. Notwithstanding the delay in filing the complaint, investigation reveals that the allegations are justified. It is true that the learned Sessions Judge has granted anticipatory bail to all the other accused. The petitioner is a person of questionable antecedents. He has a criminal background. In these circumstances, grant of anticipatory bail to the petitioner would hamper the smooth course of investigation. There are no features in this case which would justify or warrant the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. B.A. No. 381 OF 2008 -: 5 :- The petitioner may be directed to surrender before the learned Magistrate and seek regular bail. 4. In the nature of the contentions raised, this Court requested the learned Public Prosecutor to place the Case Diary for my perusal. The Case Diary has been perused. The learned counsel for the petitioner has placed before me the documents to show unmistakably that on 21/12/07 an application under the Right to Information Act was filed by the petitioner in accordance with law calling for certain details regarding the authority under which the amusement park was run. That to my mind is of crucial and vital significance in the facts and circumstances of this case. I shall at this early stage of the investigation carefully avoid any detailed discussions on merits about the acceptability of the allegations or the credibility of the data collected. Suffice it to say that having rendered my very anxious consideration to the totality of the inputs available in this case, I am satisfied that this Court has to and will be perfectly justified in issuing directions under Sec.438 of the Cr.P.C. in favour of the petitioner. This is so notwithstanding the alleged background of crimes raised against the petitioner. Appropriate conditions can be imposed to ensure the interests of a fair, efficient and expeditious investigation. B.A. No. 381 OF 2008 -: 6 :- 5. In the result, this petition is allowed. Following directions are issued under Sec.438 of the Cr.P.C: (i) The petitioner shall appear before the learned Magistrate having jurisdiction at 11 a.m. on 5/2/08 . He shall be released on regular bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (ii) The petitioner shall make himself available for interrogation before the Investigating Officer between 10 a.m. and 5 p.m. on 6/2/08 and 7/2/08. During this period the Investigator shall be at liberty interrogate the petitioner in custody and take all necessary steps for the proper conduct of the investigation. Thereafter the petitioner shall appear before the Investigating Officer on all Mondays, Wednesdays and Fridays between 10 a.m. and 12 noon for a period of two months. Subsequently, he shall so make himself available for interrogation before the Investigating Officer as and when directed by the Investigating Officer in writing to do so. (iii) If the petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioner and deal with him in accordance with law as B.A. No. 381 OF 2008 -: 7 :- if these directions were not issued at all; (iv) If the petitioner were arrested prior to his surrender on 5/2/08 as directed in clause (i) above, he shall be released on his executing a bond for Rs.50,000/- without any sureties undertaking to appear before the learned Magistrate on 5/2/08. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge