IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 Bail Appl..No. 3435 of 2009(B) ----------------------------- PETITIONER/ACCUSED -------------------------------------- SURESHKUMAR, AGED 42 YEARS, S/O.RAGHAVAN PILLAI, AJITHA BHAVAN, VELLIMON P.O., CHERUMOODU, PERINAD. BY ADV. SRI.VIJU THOMAS SMT.M.MEENA JOHN RESPONDENT(S): COMPLAINANT --------------------------------------------- 1. SUB INSPECTOR OF POLICE, KUNDARA, KOLLAM. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. R1 & R2 BY PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ================== B.A. No. 3435 of 2009-B ================== Dated this the 2nd day of July, 2009. O R D E R Apprehending arrest in Crime No.436/2009 of Kundara Police Station, this petition is filed under Section 438 of Code of Criminal Procedure. Petitioner had earlier filed Crl.M.C.No.1951/2009 under Section 482 of Code of Criminal Procedure to quash Annexure III FIR. It was dismissed. Annexure III FIR was registered based on Annexure II complaint filed by the Secretary of Kundara Grama Panchayat alleging that a public panchayat well situated near the property of Jaladharan Pillai was filled up by a group of people under the leadership of the petitioner using JCB. Case of the petitioner is that then never existed a public well in his property and he did not trespass or fill up any well and the case is lodged without any basis. B.A.No.3435/2009-B -2- 2. Learned Public Prosecutor submitted that the Panchayat register shows existence of a well in Ward No.VII and that well was filled up by the petitioner and therefore the case is registered under Section 447 of Indian Penal Code and Section 3 of Prevention of Damage to Public Property Act and it is to be investigated. 3. Panchayat register would only show that a public well existed in Ward No.VII. It does not establish identity of that well as the well alleged in Annexure II complaint. Considering the facts disclosed when petitioner has a case that there never existed a public well, case of the Panchayat is that there existed a well and it was filled up by the petitioner. The question could only decided on evidence. But the question is whether custodial interrogation of the petitioner is necessary and if not, whether petitioner can be granted anticipatory bail. 4. From the nature of the case, I find that petitioner is entitled to the anticipatory bail. Hence petition is allowed. B.A.No.3435/2009-B -3- 5. In the event of arrest of the petitioner in Crime No.436/2009 of Kundara Police Station, he shall be released on bail on executing a bond for Rs.10,000/- with two solvent sureties each for the like sum to the satisfaction of the investigating officer. Petitioner shall not induce or threaten any witness and shall not interfere with the investigation. Petitioner shall make himself available for interrogation as and when required by the investigating officer and shall appear before the Sub Inspector of Police, Kundara between 10.00 and 12.00 AM on every Wednesday for one month. M.SASIDHARAN NAMBIAR JUDGE dkr