IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 Bail Appl..No. 7183 of 2008() ----------------------------- CRIME NO.505/2008 OF FEROKE POLICE STATION .................... PETITIONERS (S): ACCUSED -------------------- 1. MIJUN,AGED 19 YEARS, S/O. VALSAN, VALAPPIL HOUSE, OLAVANNA AMSOM, MATHARA DESOM, OF KOZHIKODE TALUK. 2. RIYAZ, AGED 25 YEARS, S/O. ABOOBACKER, PATTAMPURATH HOUSE, KODAL AMSOM, POOLAYANKARA DESOM OF KOZHIKODE TALUK. BY ADV. SRI.SANTHARAM.P RESPONDENT(S): --------------- STATE OF KERALA, REP. BY ITS PP, HIGH COURT OF KERALA, ERNAKULAM,KOCHI -31. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. --------------------------------------------- B.A.No.7183 of 2008 --------------------------------------------- Dated this the 28th November, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Section 353 IPC and Sections 20 and 21 of Protection of River Banks and Regulation of Removal of Sand Act. According to prosecution, on 24.10.2008, at about 8 a.m., on getting information, police party went to the scene of occurrence and found that first and second accused were engaged in illegal sand mining. On seeing the police, accused pushed off the junior Sub Inspector and ran away from the scene, and they could not be arrested. A crime was registered and the lorry was seized. 3. Learned counsel for petitioners submitted that no incident had taken place, as alleged. Cases were registered against second accused in connection with sand mining and also for offence under Section 353 IPC. But, as far as first accused is concerned, no case is pending against him so far. He is not having any criminal antecedent. But, on 24.10.2008, at about 8 a.m., first accused was driving the vehicle belonging to second BA No.7183/2008 2 accused while two police constables showed signals to stop the vehicle. When he stopped the vehicle, he was asked to go to the police station. 4. Accordingly, the vehicle was taken to the police station. From there, the Circle Inspector questioned him about the documents relating to the vehicle. He immediately called second accused and requested him to come over to the police station with the documents. He went there with the documents also. At that time, both the accused were asked to bring sand in the lorry. They were also assaulted by the Circle Inspector. On the belief that it would be to trap the petitioners in a sand mining case and also to escape from further torture at the police station, petitioners ran away from the police station, for their life. 5. Since they were injured, they got admitted in the Beach Hospital and they underwent treatment also. The father of second accused gave a complaint to the Commissioner of Police, (vide Annexure 1) narrating all the above facts. The documents relating to the treatment were also produced along with the said complaint. Petitioner produced Annexure 2, which BA No.7183/2008 3 is stated to be the photograph of accused no.2, to reveal that he sustained injury at the hands of police. The things being so, according to petitioners, the present complaint is lodged only with a view to wriggle out from the liability of the Circle Inspector of Police from the action taken against him as per Annexure 1. There was not even a grain of sand in the lorry and no offence was committed as alleged in the complaint, it is submitted. This case is filed only as a shield to the proposed action from the side of petitioners against police, it is submitted. 6. Petitioners are absolutely innocent. If the petitioners are arrested and remanded on these allegations, it is likely that they will suffer irreparable injury and loss, it is submitted. Learned counsel for petitioners also submitted that the very fact that petitioners were not arrested from the spot itself is a clear indication to the fact that no incident had taken place at the scene. It would not have been difficult for the police party to apprehend petitioners, if as a matter of fact, an incident as alleged had taken place, it is urged. Petitioners allegedly left the place by running away and not by driving away the vehicle, it pointed out. BA No.7183/2008 4 7. This petition is opposed. Learned public prosecutor submitted that the case diary reveals that this is a case where the first and second escaped from the scene by pushing off the junior Sub Inspector. They escaped from the clutches of the police. This is not a fit case to grant anticipatory bail, it is submitted. 8. On hearing both sides, it appears that petitioners have a strong counter allegation, particularly in the light of Annexure 1,. Petitioners were hospitalised also. In the nature of allegations made and nature of contentions raised by both sides, it appears to me that contentions raised by the petitioners can be substantiated only at the time of evidence. If no opportunity is afforded to substantiate their contentions and if anticipatory bail is refused, it may result in great injustice. Therefore, in the peculiar facts and circumstances, I find that anticipatory bail has to be granted to the petitioners failing which, it may result in great injustice and hence, the following order is passed: Petitioners shall surrender before the Magistrate concerned within seven days from today and they shall be released on bail on their executing bond for BA No.7183/2008 5 Rs.25,000/- each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate on the following conditions: (i) Petitioners shall report before the Investigating Officer as and when directed and co-operate with investigation. (ii) Petitioners shall not tamper with evidence or commit any offence while on bail. The petition is allowed. K.HEMA, JUDGE csl