IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 Bail Appl..No. 5217 of 2009() ---------------------------------- CRIME NO. 69/2009 OF MANJESHWAR POLICE STATION ...................... PETITIONER/ACCUSED : --------------------------- 1. SHEIK MOHAMMED, AGED 38 YEARS, S/O. SABJAN, R/AT AILA BEACH ROAD, NR. BHAGHAVATHI TEMPLE, UPPALA, KASARAGOD. 2. MRS. SUMAYYA BEGUM, AGED 32 YEARS, W/O. SHEIK MOHAMMED, R/AT AILA BEACH ROAD, NR. BHAGHAVATHI TEMPLE, UPPALA, KASARGOD. BY ADVS. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT : --------------- STATE OF KERALA, REP. BY OF THE SUB INSPECTOR OF POLICE, MANJESHWAR POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, ERNAKULAM. BY SRI. V. TEKCHAND PUBLIC PROSECUTOR SRI.SATHISH NINAN FOR ADDL R2 SRI.SANTHOSH MATHEW FOR ADDL R2 THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 5217 of 2009 ------------------------------------ Dated this the 11th day of March, 2010 O R D E R When the Bail Application came up for hearing on 04.01.2010, the following order was passed: “This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No.69 of 2009 of Manjeshwar Police Station, Kasaragod District. 2. The offences alleged against the petitioners are under Sections 406, 420, 421, 422, 423 and 424 of the Indian Penal Code. 3. The prosecution case is that the first petitioner took a housing loan of Rs.10 lakhs from the de facto complainant Bank. The second petitioner, who is the wife of the first petitioner, stood as surety. The first petitioner did not construct the house in the property but, diverted the money. It is stated that the petitioners committed the offences alleged against them. B.A. No. 5217 /2009 2 4. The learned counsel for the petitioners submitted that 62 crimes were registered by Manjeshwar Police against different persons on almost identical allegations and in 60 cases, anticipatory bail was granted by this Court a few months back. It is also submitted that the Bank has filed civil suit for realisation of the amount due to the Bank. 5. After having heard the learned counsel for the petitioners and the learned Public Prosecutor, I am of the view that before disposing of the Bail Application, an opportunity should be given to the petitioners to appear before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer at 9 A.M. on 11.1.2010 and 12.1.2010. The petitioners shall produce a copy of the order before the investigating officer. Post on 18.1.2010. B.A. No. 5217 /2009 3 It is submitted by the learned Public Prosecutor that the petitioners will not be arrested until further orders in connection with Crime No.69 of 2009 of Manjeshwar Police Station, Kasaragod District.” 2. The time for compliance of the direction in the order dated 04.01.2010 was extended by the order dated 29.01.2010, which reads as follows: “On 04.01.2010, an order was passed directing the petitioners to appear before the investigating officer on 11.01.2010 and 12.01.2010. The petitioners did not comply with that order. Crl.M.A.No.326/2010 was filed for extension of time to appear before the investigating officer. In that application, it is stated that the order was sent to the petitioners by courier on 08.01.2010, but it was delivered to the petitioners only on 13.01.2010. Therefore, the petitioners could not comply with the order dated 04.01.2010. To show that the article was sent by courier on 08.01.2010 and it was received by the B.A. No. 5217 /2009 4 counsel for the petitioners at Kasaragod on 13.01.2010, Annexures A1 and A2 were produced along with Crl.M.A.No. 429/2010. 2. In the facts and circumstances of the case, I am of the view that before disposing of the Bail Application, an opportunity should be given to the petitioners to appear before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer at 9 A.M. on 3rd and 4th February, 2010. Post on 10.02.2010. It is submitted by the learned Public Prosecutor that the petitioners will not be arrested until further orders in connection with Crime No. 69/2009 of Manjeshwar Police Station, Kasaragod. The petitioners shall produce copy of this order before the investigating officer. Hand over copy to both sides.” 3. Later, when the Bail Application came up for hearing on 17.02.2010, the Standing Counsel for the State Bank of B.A. No. 5217 /2009 5 Tavancore, Manjeshwar, the de facto complainant in the case, appeared. On the basis of the submission made by the Standing Counsel, the following order was passed on 17.02.2010: “The learned Public Prosecutor submitted that the name of the first accused is not Sheik Mohammed. Investigation reveals that the person concerned is one Shabir Sahib, S/o. Bappu Sahib, Near Apsara Compound, P.O. Ajekar, Karkala Taluk, Karnataka. 2. The learned Standing Counsel appearing for the State Bank of Travancore, the de facto complainant in the case, submitted that Sheik Mohammed is no more and that loan was taken in the name of a dead person. The Standing Counsel submitted that when summons was taken in the civil suit, it was returned stating that Sheik Mohammed was dead. 3. In these circumstances, it is necessary to ascertain the identity of the first petitioner in the Bail Application. The learned counsel for the petitioners B.A. No. 5217 /2009 6 sought time to get instructions. Post on 01.03.2010. Hand over copy to the counsel for the petitioners, the learned Public Prosecutor and the Standing Counsel appearing for the State Bank of Travancore.” 4. Today, the learned counsel for the petitioners sought permission to withdraw the Bail Application. In the light of the events which took place in the meanwhile, I am not inclined to allow the petitioners to withdraw the Bail Application. 5. The learned counsel for the petitioners submitted that he has not received instructions in the matter. 6. The learned Public Prosecutor submitted that the second petitioner appeared before the investigating officer on 3rd and 4th February, 2010, along with a person, who stated that he was Sheik Muhammed. But on interrogation by the police, it was revealed that he was not Sheik Muhammed but Shabir Sahib, S/o. Bappu Sahib, Near Apsara Compound, P.O. Ajekar, Karkala Taluk, Karnataka. B.A. No. 5217 /2009 7 7. In these state of affairs, I am of the view that the petitioners are not entitled to any discretionary relief under Section 438 of the Code of Criminal Procedure. It is necessary to subject the petitioners to custodial interrogation. If anticipatory bail is granted to the petitioners, it would adversely affect the proper investigation of the case. For the aforesaid reasons, the Bail application is dismissed. K.T. SANKARAN, JUDGE ln