IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 Bail Appl..No. 6858 of 2009 CRIME NO.79 OF 2004 OF VARAPUZHA POLICE STATION, ERNAKULAM PETITIONERS/ACCUSED --------------------------------------- 1. M.V.VALSALAN, AGED 59 YEARS, MANAYATH VADAKKEL HOUSE, KAMBIL, KOLACHERRY P.O., KANNUR DISTRICT. PROPRIETOR, "ATLAS JEWELLERY", TALIPARAMBA, KANNUR DISTRICT. 2. M.V.PRATEESH KUMAR, AGED 30 YEARS, S/O. M.V.VALSALAN, MANAYATH VADAKKEL HOUSE, KAMBIL, KOLACHERRY P.O., KANNUR DISTRICT. BY ADV. SRI.K.C.PETER SRI.PREMCHAND R.NAIR SRI.TOJAN J. VATHIKULAM SRI.BEPIN PAUL RESPONDENTS: COMPLAINANTS --------------------------- 1. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, VARAPUZHA POLICE STATION, REPRESENTED THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THE DEPUTY SUPERINTENDENT OF POLICE, CB CID, ERNAKULAM. DIRECTOR GENERAL OF PROSECUTION SRI.P.G.GOVINDAN NAIR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 26/03/2010, ALONG WITH BA NO.6872 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS.6858 & 6872 OF 2009 ------------------------------------------------------ Dated this the 26th day of March, 2010 O R D E R These are applications for anticipatory bail under Section 438 of the Code of Criminal Procedure. The first petitioner in B.A.No.6858 of 2009 is accused No.8 in Crime No.79 of 2004 of Varapuzha Police Station. The petitioner in B.A.No.6872 of 2009 is accused No.9 in the same crime. It is submitted by the learned Public Prosecutor that the second petitioner in B.A.No.6858 of 2009, namely, M.V.Prateesh Kumar is not an accused in the crime. 2. The offences alleged against the petitioners are under Sections 457, 461, 380 and 411 read with Section 34 of the Indian Penal Code. 3. The prosecution case is that in 2004, Thaliath Matha Jewellery at Varapuzha was broke open and accused Nos.1 to 6 committed theft of 3.750 Kgs. of gold ornaments, one kilogram of silver and Rs.50,000/-. The allegation against accused Nos.8 and 9 is that they received the stolen articles from the other accused. B.A. NOS.6858 & 6872 OF 2009 :: 2 :: 4. The petitioners are running jewellery shops in Thaliparamba, Kannur. It is submitted by the learned counsel for the petitioners that at no point of time earlier, there was any allegation that the petitioners are involved in receiving stolen properties. It is submitted that simply because some of the accused have stated that they had sold the stolen articles in the shops belonging to the petitioners, the petitioners cannot be harassed by the police contrary to the directions and circulars issued by the Government from time to time. It is also pointed out by the learned counsel for the petitioners that on earlier occasions also, they were directed by the police to handover gold ingots. It is submitted that under pressure, the petitioners were compelled to part with gold ingots. It is submitted that the petitioners have filed applications before the Court for return of the gold ingots which they had given, stating that they had not received any stolen property from any person. 5. When the Bail Applications came up for hearing on 23.2.2010, an order was passed directing the petitioners to appear before the investigating officer on 4th, 5th, 8th and 9th March, 2010. B.A. NOS.6858 & 6872 OF 2009 :: 3 :: The order passed on 23.2.2010 in B.A.No.6858 of 2009 is extracted below: “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 AM on 4th, 5th, 8th and 9th March, 2010. The petitioners shall remain before the investigating officer till 1 P.M on all these days. It is submitted by the learned Public Prosecutor that the petitioners will not be arrested until further orders in connection with Crime No.79 of 2004 of Varappuzha Police Station, Ernakulam District. The petitioners undertake to produce all the relevant records in respect of the conduct of the Jewellery as directed to be produced by the investigating officer. It is made clear that the direction to appear shall not be taken as a ground for claiming anticipatory bail as of right. The question whether the petitioners are entitled to get anticipatory bail will be considered after B.A. NOS.6858 & 6872 OF 2009 :: 4 :: the petitioners appear before the investigating officer as aforesaid. Post on 15.3.2010. The petitioners shall produce copy of this order before the investigating officer.” 6. The petitioners were also directed to produce the relevant records in respect of the conduct of the Jewellery by them before the investigating officer. It is submitted by the learned counsel for the petitioners that the petitioners have complied with the directions. The learned Director General of Prosecution submitted that the petitioner in B.A.No.6872 of 2009 appeared on all the dates directed by the Court, while the first petitioner in B.A.No.6858 of 2009 had substantially complied with the direction. The learned counsel for the petitioners submitted that the first petitioner in B.A.No.6858 of 2009 is a heart patient and he had undergone a bypass surgery. 7. The learned counsel for the petitioners submitted that the petitioners are prepared to co-operate with the investigating officer and they are prepared to appear before the investigating officer at B.A. NOS.6858 & 6872 OF 2009 :: 5 :: any time when they are directed to do so. The petitioners are also prepared to co-operate with the investigation in any manner as lawfully suggested by the investigating officer. These submissions are recorded. 8. Taking into account the peculiar facts and circumstances of the case and the fact that theft was committed in 2004 and all the other attendant circumstances, I am of the view that anticipatory bail can be granted to the first petitioner in B.A.No.6858 of 2009 and the petitioner in B.A.No.6872 of 2009. 9. There will be a direction that in the event of the arrest of the first petitioner in B.A.No.6858 of 2009 and the petitioner in B.A.No.6872 of 2009, the officer in charge of the police station shall release them on bail on their executing bond for Rs.25,000/- each with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: a) The first petitioner in B.A.No.6858 of 2009 and the petitioner in B.A.No.6872 of 2009 shall report before the investigating officer between 9 A.M. and 11 A.M. on alternate Mondays, till the final report is filed or until further orders; B.A. NOS.6858 & 6872 OF 2009 :: 6 :: b) The first petitioner in B.A.No.6858 of 2009 and the petitioner in B.A.No.6872 of 2009 shall appear before the investigating officer for interrogation as and when required; c) The first petitioner in B.A.No.6858 of 2009 and the petitioner in B.A.No.6872 of 2009 shall not try to influence the prosecution witnesses or tamper with the evidence; d) The first petitioner in B.A.No.6858 of 2009 and the petitioner in B.A.No.6872 of 2009 shall not commit any offence or indulge in any prejudicial activity while on bail; e) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Applications are allowed to the extent indicated above. (K.T.SANKARAN) Judge ahz/