IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 Bail Appl..No. 1563 of 2008() ----------------------------- CRIME NO.150/2007 OF MELUKAVU POLICE STATION PETITIONER : ACCUSED ------------------------ JEEVAN TOM, S/O.THOMAS ANJUKANDATHIL VEEDU,MELUKAVU. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENTS: ------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.1563 of 2008 ------------------------------------- Dated this the 12th day of March, 2008 ORDER Application for anticipatory bail. Petitioner faces allegations in a crime registered alleging offences punishable under Section 379 r/w 34 I.P.C. The complaint is about theft of rubber latex. The defacto complainant claims to be the owner of an item of property, which is a rubber estate. The crux of his grievance is that when he was hospitalised, accused persons had tapped rubber latex from trees in his property and thereby they have committed the offence of theft punishable under Section 379 I.P.C. Initially, in the F.I.R the petitioner was not arrayed as an accused. The 1st accused shown in the F.I.R has subsequently been deleted and the petitioner has been substituted in his place. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the complaint smacks of mala fides and abuse of the criminal adjudicatory process. The learned counsel for the petitioner submits that the petitioner was obliged to come before this Court B.A.No.1563 of 2008 2 with Writ Petition No.32272 of 2007. Orders have been passed in the Writ Petition in favour of the petitioner on 28.02.08. The real dispute has not been revealed to the Investigating Officer at all in the F.I.R. The Investigating Officer is also hands in glove with the defacto complainant. The petitioner has a totally different story to advance. 3. According to the petitioner, the defacto complainant is not in possession of the rubber estate as alleged by him. The petitioner's father had executed a document to make it appear that some portion of the family property is assigned to the defacto complainant. The petitioner's father is at loggerheads with other members of the family and such a document had been brought into existence by the defacto complainant and the father of the petitioner. The defacto complainant has not obtained any possession over any portion of the family property on the basis of such a document. The defacto complainant had filed a suit before the civil court as early as in 2006 for demarcation of the property which he is alleged to have obtained from the father of the petitioner. No interim orders were granted in favour of the defacto complainant so far. The defacto complainant who has suffered such reverses in the civil litigation is attempting to steal B.A.No.1563 of 2008 3 a march over the petitioner by initiating criminal prosecution against the petitioner and his employees. The assertion that the defacto complainant had possession over the land is incorrect and false. After the petitioner came to this Court and secured the order in Writ Petition No.32272 of 2007, false allegations are raised and the petitioner is included in the array of accused. In any view of the matter the grievance of the defacto complainant who is not shown to have exclusive possession of the property of theft of rubber latex from the trees in such property cannot be entertained. The petitioner is the person in possession of the property. The property is his family property. The defacto complainant cannot complain of theft of latex from the rubber trees in the family property of the petitioner. According to the petitioner though a document has been executed by the father of the petitioner in favour of the defacto complainant, he had never obtained any possession over the property. Theft presupposes prior possession. In as much as the defacto complainant is not shown to have any possession over the disputed property, the petitioner may not be permitted to be harassed by the vexatious initiation of proceedings against him. Anticipatory bail may be granted to the petitioner, it is prayed. B.A.No.1563 of 2008 4 4. The learned Public Prosecutor after discussions at the Bar does not oppose the application for anticipatory bail. I am satisfied in the facts and circumstances of this case that anticipatory bail can be granted to the petitioner. In the circumstances of the case and in the light of the fact that the application is not opposed, it is not necessary for me to advert to facts in any greater detail in this order. 5. In the result, the Bail Application is, allowed. The following directions are issued under Section 438 Cr.P.C. i) The petitioner shall appear before the learned Magistrate at 11 a.m on 24.03.2008. He shall be enlarged on regular bail on his executing a bond for Rs.25,000/- (Rupees Twenty Five thousand only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate; ii) The petitioner shall make himself available for interrogation before the Investigating Officer between 10 a.m and 3 p.m on 25.03.2008 and thereafter as and when directed by the Investigating Officer in writing to do so; iii) If the petitioner does not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to B.A.No.1563 of 2008 5 arrest the petitioner and deal with him in accordance with law as if those directions were not issued at all; iv) If the petitioner were arrested prior to his surrender on 24.03.08 as directed in clause (1) above, he shall be released from custody on his executing a bond for Rs.25,000/- (Rupees Twenty Five thousand only) without any sureties undertaking to appear before the learned Magistrate on 24.03.08. (R.BASANT, JUDGE) rtr/-