IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Bail Appl..No. 5718 of 2008(B) ------------------------------------- AGAINST THE ORDER IN BA.3520/2008 Dated 08/07/2008 CRIME NO.187/08 OF OLLUR POLICE STATION .................... PETITIONER/4TH ACCUSED : ----------------------------------- SASIDHARAN.K.R, AGED 46 YEARS, S/O. RAMAN, KADAVIL HOUSE, VALACHIRA, THRISSUR. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT/COMPLAINANT : ------------------------------------ STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, OLLUR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ------------------------------ B.A. No.5718 OF 2008 ------------------------------ Dated this the 15th day of October, 2008 O R D E R This petition is for anticipatory bail. 2. The alleged offences are under Clause 5A of the Kerala Rationing Order, 1966 read with Sections 3 and 7 of the Essential Commodities Act, 1955. According to the prosecution, ration articles were found being unloaded in 1st accused's godown and the articles were intended to be supplied to the ration shops of accused Nos.3 and 4. The 2nd accused is the driver of the vehicle from which the articles were unloaded. The incident occurred on 06.03.2008. The petitioner is the 4th accused in the crime. 3. Petitioner filed an application for anticipatory bail before the Sessions court and it was dismissed as per order dated 28.05.2008. The investigation could not be proceeded with, since the accused were not available for arrest and interrogation. The 1st accused filed an anticipatory bail application as B.A.No.2538 of 2008 before this Court and as per order dated 06.05.2008, this Court found that the incident occurred on 06.03.2008 and B.A.5718 of 2008 2 almost two months have elapsed therefrom and the police was unable to effect arrest of the 1st accused and no considerable progress in the investigation could be made without delay, unless the 1st accused is made available for questioning. On such observations, anticipatory bail was granted to 1st accused by this Court directing him to surrender before the Magistrate court and thereafter on release of the 1st accused to appear before the Investigating Officer. 4. The 3rd accused filed an application for anticipatory bail before this Court as B.A.No.3520 of 2008. This Court as per order dated 08.07.2008 held, “anticipatory bail cannot be granted in a case of this nature. But at the same time, I am inclined to permit the petitioner to surrender before the Investigating Officer for the purpose of interrogation and then to have his application for bail considered by the Magistrate having jurisdiction.” The 3rd accused was directed to surrender before the Investigating Officer for interrogation and recovery of B.A.5718 of 2008 3 incriminating material, if any. He was also directed to be released on bail by the Magistrate. 5. Learned counsel for the petitioner submitted that in the above circumstances, the petitioner may also be granted anticipatory bail. It is pointed out that accused Nos.3 and 4 stand on the same footing. By order dated 08.07.2008, this Court directed the learned Magistrate to release the accused on bail on appropriate conditions. Hence the same benefit may be extended to the petitioner, it is submitted. On hearing both sides and on going through the different orders, I find that anticipatory bail application filed by the petitioner was dismissed on tenable grounds by the learned Sessions Judge. This Court has also observed as per order dated 08.07.2008 in B.A.No.3520 of 2008 that anticipatory bail cannot be granted in a case of this nature. It is also observed by this Court as per Annexure B order that the police was unable to effect arrest of the petitioner and no considerable progress is there in the investigation because of non availability of the accused for questioning. The incident occurred as early as on 06.03.2008. The B.A.5718 of 2008 4 petitioner is not so far arrested in spite of lapse of more than seven months. It is clear that the petitioner has been successfully evading arrest by the police and filing of the petition before this Court has also to some extent contributed to the delay in arrest and interrogation. In such circumstances, I do not think it proper to grant anticipatory bail to the petitioner. However this Court as per Annexure C order has directed the Magistrate court to release the 3rd accused on bail on appropriate conditions, though it was held that anticipatory bail cannot be granted in a case of this nature. In this context, I make it clear that considerations for granting of anticipatory bail are different from considerations of granting bail under Section 437 or 439 Cr.P.C. and hence, it is left to the learned Magistrate to decide whether the petitioner is to be released on bail or not. The incident is on 06.03.2008 and the anticipatory bail application filed by petitioner before learned Sessions Judge was dismissed as early as on 28.05.2008. still petitioner is not made available for arrest so far. B.A.5718 of 2008 5 However, I direct that petitioner shall surrender before the Investigating Officer or before the learned Magistrate within seven days from today and make himself available for interrogation by the police and co-operate with the investigation. With these directions and observations, the petition is dismissed. K.HEMA, JUDGE pac