IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 Bail Appl..No. 7387 of 2008() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN BA.6238/2008 CRMP.9751/2008 of J.M.F.C.-I,PATHANAMTHITTA CRIME NO.724/08 OF PATHANAMTHITTA POLICE STATION PETITIONER/ ACCUSED --------------------------------------- ALEX T.GEORGE @ ALEX THANKACHAN, MULAKKAL HOUSE, JESUS ROAD, NANNUAKKAD.P.O, PATHANAMTHITTA. BY ADV. SRI.T.P.PRADEEP RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 7387 of 2008 ----------------------------------------- Dated this the 5th December, 2008 O R D E R This petition is for bail. 2. The alleged offences are under Sections 341, 427 and 308 of the Indian Penal Code. According to prosecution, on 16.9.2008, at about 8.30 AM, de facto complainant's car was stopped by accused and the rear view mirror and wind screen glass were broken by accused with a weapon. 3. Learned counsel for petitioner submitted that the allegations made are false. The actual accident occurred while the de facto complainant was overtaking the motorcycle driven by petitioner. Some damage caused and the car was stopped and there was an altercation. It is not correct to say that any weapon was used by de facto complainant. The offence under Section 308 IPC is included only with a view to harass petitioner. The only injury sustained by de facto complainant is an abrasion on the forearm and it is unlikely that if there is an attack as alleged such as injury alone will be caused, it is submitted. BA.7387/08 2 4. Learned counsel for petitioner further submitted that petitioner was granted anticipatory bail in this case by this Court as per Annexure-A order dated 29.10.2008 in B.A.No.6238 of 2008 and the following directions were passed: “(1) Petitioner shall surrender before the investigating officer within seven days from today and make himself available for interrogation and co-operate with the investigation. (2) In the event of arrest of petitioner, he shall be produced before the Magistrate Court concerned in accordance with law. (3) On production of petitioner before the Magistrate Court, petitioner shall be released on bail on his executing bond for Rs.25,000/- with two solvent sureties each for the like sum to the satisfaction of the arresting officer on the following conditions: (i) Petitioner shall report before the investigating officer on every Monday between 10 a.m to 1 p.m until further orders. (ii) Petitioner shall not influence or intimidate any witness or commit any offence while on bail.” 5. In obedience to the directions issued by this Court, petitioner surrendered before the investigating officer on 4.11.2008, 5.11.2008 and 6.11.2008. But the Circle Inspector of Police, who is the investigating officer, refused to record his arrest, with a view to see that petitioner is detained in custody. This object was achieved by him also. BA.7387/08 3 6. Sri.George Koshy, Advocate practising in Pathanamthitta, who is also the President of the Bar Association and former Public Prosecutor, has sworn to an affidavit, which is Annexure-B, revealing that on three days on 4.11.2008, 5.11.2008 and 6.11.2008 petitioner went to the Circle Inspector of Police as instructed by him and also that on 6.11.2008 he had contacted the Circle Inspector personally and requested him to record the arrest of petitioner, in the light of the anticipatory bail order of this Court. But the Circle Inspector of Police failed to arrest the accused and was giving some lame excuses for not recording the arrest. Thereafter, petitioner was taken out of the house on 11.11.2008, by breaking open the door of his house, at the instance of de facto complainant. On 11.11.2008 at about 8.30 p.m., de facto complainant came to the road in front of the house of petitioner along with one Chopra Rajesh and started creating some commotion. Petitioner knew that this was done deliberately with intention to invite trouble for petitioner. So, he closed the door from inside and remained in the house knowing fully well the consequences if he appears to be involved in any case. De facto complainant is highly influential. He was also in a goonda gang by name “Pathinettara Group” originally, but later, he became rich and influential. On information given by de facto complainant, police BA.7387/08 4 party, including the Circle Inspector, Sub Inspector and the Probationary Sub Inspector came to the house of petitioner and broke open the house. Damage was also caused to the house as revealed by Annexure-C photographs, it is submitted. But the intention of de facto complainant and the police party was to instigate him to commit some crime, so that his anticipatory bail can be cancelled. Knowing the consequences, petitioner did not dare to open the door. But, it was broke open and he was forcibly taken to the police station. He was brutally manhandled from his own house and also in the police station. 7. Thereafter, on the next day on 12.11.2008, arrest was recorded in this case and another case. It was made to appear that he was arrested from some other place and he was produced before the Magistrate Court along with a remand report in the case. But, unfortunately, learned Magistrate remanded the petitioner to custody on 13.11.2008, despite the anticipatory bail granted by this Court and he is in custody since then. Annexure-C is a copy of the letter sent to the Human Rights Commission on 18.11.2008 by petitioner's brother. 8. Learned Public Prosecutor also submitted that he has not received any instructions on the allegations made against the police officers. It is submitted that it appears to him that the allegations of BA.7387/08 5 assault were brought to light for the first time before this Court only. 9. Learned counsel for petitioner also submitted that petitioner is now falsely implicated in two more crimes viz., Crime No.919/08 and 917/08 of Pathanamthitta Police Station, with ulterior motive. It is also submitted that petitioner has absolutely no criminal background and that it is understood that the present crimes are registered only with deliberate intention to proceed against him under the Kerala Anti-Social Activities (Prevention) Act, 2007. Petitioner also fears that Police will implicate him in more crimes in other police station also and try to label him as a criminal. A representation is given to the Human Rights Commission (vide Annexure-E) in respect of this incident. On hearing both sides, I am satisfied that bail has to be granted to petitioner without any delay. If this Court does not intervene at this juncture, it is likely that more harm will be done to petitioner. Hence, other directions also have to be issued in the matter. Hence, the following order is passed: i) Bail is granted to petitioner on the petitioner executing a self-bond for Rs.10,000/- to the satisfaction of the Magistrate Court concerned on condition that he will appear in court during trial. BA.7387/08 6 ii) The Circle Inspector is directed to file a affidavit on the allegations made against him in the petition and also appear in court in person on 11.12.2008. iii). Call for report from the learned Magistrate forthwith, why petitioner was remanded in spite of Annexure-A order, as per which petitioner was directed to be released on bail on conditions. iv) Forward a copy of this order to the Director General of Police for necessary action. The Director General of Police will also file report to this Court what action is taken in the matter within five days of receipt of copy of this order. Post for further orders on 11.12.2008. Petition is allowed. K.HEMA, JUDGE vgs.