IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 Bail Appl..No. 417 of 2010 CRIME NO.394 OF 2009 OF ELATHUR POLICE STATION PETITIONERS: ACCUSED NOS.9 & 10: ------------------------------- 1. PRAKASAN.M.K,AGED 42,DOCUMENT WRITER, S/O.MADHAVAN,MELEKKALTHIL VEEDU,P.O.EDAKKAD, KOZHIKODE-5. 2. ANIL KUMAR.C,AGED 31,S/O.RAMACHANDRAN NAIR, PADINJARE KANNARAMBATH,P.O.EDAKKAD, KOZHIKODE-5 (RESIDING WITHIN THE LIMITES OF ELATHUR POLICE STATION) BY ADV. SRI.K.SHIBILI NAHA SMT.A.LOWSY RESPONDENT: --------------- S.I.OF POLICE,ELATHUR THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON 08/03/2010 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 417 OF 2010 ------------------------------------------------------ Dated this the 8th day of March, 2010 O R D E R The petitioners are accused Nos. 9 and 10 in Crime No. 394 of 2009 of Elathur Police Station. The petitioners seek anticipatory bail under Section 438 of the Code of Criminal Procedure. 2. The offences alleged against the accused are under Sections 143, 147, 148, 341,332, 353, 294 (b) and 225-B read with Section 149 of the Indian Penal Code and Section 3 (2) (e) of the P.D.P.P.Act. 3. The Crime was suo motu registered by the Sub Inspector of Police, Elathur. The accused persons are shown to be Jibeesh, Sageesh and 50 other identifiable persons. The case of the prosecution is the following: on 25-12-2009, while the Sub Inspector of Police, Assistant Sub Inspector of Police and two head constables were on patrol duty, at about 8 P.M., they reached near Edakkad Ganapathy temple. They saw three persons consuming liquor in public. One seeing the police party, they ran away. The police party B.A. NO. 417 OF 2010 :: 2 :: apprehended one among them. The bottle containing liquor, two tumblers, and a bottle of water were seized. He refused to divulge his name. He stated he was not prepared to disclose his name and address and the police could do whatever they wanted. While he was being taken to the place where the police jeep was parked, Jibeesh, Sageesh and about ten others obstructed the police party. They stated that on Christmas day, anybody could consume liquor at any place. They used abusive words against the police and obstructed them from discharging their official duties. When the police party tried to leave the place after taking into custody the person who was found consuming liquor in public place, the persons assembled there obstructed the jeep being taken and attacked the head constable. They also manhandled the Sub Inspector of Police. They rescued the person who was taken into custody by the police. When the police party tried to prevent this, the accused persons manhandled the police personnel and poured liquor on them. They also caused destruction to the police jeep. The Sub Inspector of police informed the higher police officials through wireless and phone. The police party abandoned the police jeep and took the Head Constable to the hospital. It is alleged that the accused attacked the police party due to their displeasure towards the police B.A. NO. 417 OF 2010 :: 3 :: in imposing fine on persons driving motor bikes without helmet and in taking into custody the person who was found consuming alcohol in public place. 4. It is stated that the first petitioner is a document writer and the second petitioner is a businessman in Bangalore who had come to his native place during Christmas holidays. The petitioners put forward a different story. In paragraph 3 of the Bail Application, it is stated thus: “ On 25-12-2009 (Christmas day) at about 8 P.M. the petitioners heard a big hue and cry near to their house on the puthiyangadi- Kundanapramba public road. People were seen gathered and amidst them were seen a police jeep and TV Cameras from the News Channels. The petitioners rushed to the place of occurrence out of sheer curiosity and learnt that the police party on patrolling duty were themselves drunk and their attempt to intercept some persons using breath analyser was foiled by A 1 and A2. The people of the locality rushed to the place of occurrence. Liquor bottles and glasses were found in the police jeep and the people informed the Commissioner of Police, Kozhikode who rushed to the spot to witness the incident. The people of the locality and passengers as well stopped and gathered near the police jeep. The people dispersed themselves following the assurance of the B.A. NO. 417 OF 2010 :: 4 :: Commissioner of Police that action would be taken against the patrolling party who were themselves drunk while on duty. The whole incident was covered by the TV channelss and aired live on the same day itself. There was repeated telecasts of the whole episode in popular political satires “Natakame Ulagam” , “Politricks” etc. The respondent in order to save their skin started going after people whose faces appeared in the news channels. The petitioners are two of those 50 and odd people who are now being chased by the police for the simple reason that their faces are also seen among others in the TV.” 5. The petitioners have produced copies of news reports in Malayala Manorama daily dated 10-1-2010, 11-1-2010 and 8-2-2010 to support the contention that the police people are bent upon harassing innocent people who had only assembled at the scene of occurrence. It is stated in the news reports that looking at the faces of the persons seen in the photographs, the police were making them accused in the case and harassing them. 6. From the Case Diary file, it is seen that on 26th December 2009, the investigation of the case was done by the Sub Inspector of Police, Nadakkavu. On the same date itself, the case was handed B.A. NO. 417 OF 2010 :: 5 :: over to the Sub Inspector of Police, Elathur. Thereafter, it is seen that the investigation was conducted by the S.I. of Police, Elathur. 7. While disposing of the application for anticipatory bail, it is not proper to consider the merits of the case and to arrive at any conclusion on facts. 8. In the peculiar facts and circumstances of the case, I do not think that anticipatory bail can be refused to be granted to the petitioners. It is stated that the people of the State had witnessed through the news channels the “scenes” created by the policemen, who were allegedly drunk, in the public road. It is also submitted that there was protest by the people of the locality against the policemen for their alleged illegal activities. It is alleged that the people of the locality informed the Commissioner of Police, who came to the place and assured the people that appropriate action would be taken against the erring policemen. It is not known whether any such action was taken. I think the people at large would ridicule the justice administration system if the people who protested were remanded to judicial custody. The question whether the accused had committed any offence while indulging in the protest against the policemen is a B.A. NO. 417 OF 2010 :: 6 :: different matter. That is a matter to be considered by the court at the time of trial of the case. But putting the people behind the bars at this stage would not be justified, in the peculiar facts and circumstances of the case. The submission made by the learned counsel for the petitioners that if the petitioners are arrested by the police, there is every likelihood of the petitioners being manhandled, harassed and humiliated by the police, cannot be said be unfounded, particularly since the investigation of the case is being continued to be conducted by the Sub Inspector of Police, Elathur. 9. In the facts and circumstances of the case, I think it is appropriate to direct the District Superintendent of Police, Kozhikode, to look into the matter and to find out whether there was any lapse on the part of the police personnel. If it is found that there was such lapse, let the question whether it is necessary to continue with the present case (Crime No. 394 of 2009, Elathur Police Station) and whether the case should be withdrawn, be considered at the appropriate level and in accordance with law. 10. Taking into account the facts and circumstances of the case, the nature of the offence and the allegations made by the petitioners B.A. NO. 417 OF 2010 :: 7 :: against the police, I am of the view that anticipatory bail can be granted to the petitioners. There will be a direction that in the event of the arrest of the petitioners, the officer in charge of the police station shall release them on bail on their executing bond for Rs.10,000/- each with two solvent sureties for the like amount to the satisfaction of the officer concered, subject to the following conditions: (A) The petitioners shall appear before the investigating officer for interrogation as and when required; (B) The petitioners shall not try to influence or intimidate the prosecution witnesses or tamper with the evidence; (C) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail; (D) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed to the extent indicated above. (K.T.SANKARAN) Judge ahz/