IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930 Bail Appl..No. 6796 of 2008() ----------------------------- CRIME NO.754/08 OF KASARGODE POLICE STATION PETITIONER (S): ACCUSED/ ---------------------------- 1. C.H.ABDULLA,S/O.C.H.ABDUL RAHIMAN, AGED 42 YEARS, KADAVTH HOUSE,POST MOGRAL PUTHUR KASARGODE DISTRICT PIN 671 128. 2. S.A.HAMEED, S/O.ABOOBACKER HAJI AGED 45 YEARS, SUNNANKULAM HOUSE, POST MOGRAL PUTHUR,KASARAGODE DISTRICT, PIN 671 124. BY ADV. SRI.K.P.RAMACHANDRAN SRI.K.SABU RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KASARAGODE, (THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA) PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 12/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.6796 of 2008 ----------------------------------------- Dated this the 12th November, 2008 O R D E R This petition is for anticipatory bail. 2. Petitioners have filed this petition alleging that they received notices from the police, which are Annexure-G series, directing them to report before the Kasaragod Police Station for the purpose of investigation in a complaint filed against them. On enquiry, they came to know that some allegations are made against petitioners by the Port Conservator. They also understand that crime No.754/2008 was registered against them under Sections 481 and 353 read with 34 of the Indian Penal Code and 3(1) of the Prevention of Damages to Public Property Act. But, they do not know the nature of allegations made. In the peculiar circumstances under which a crime was registered they believe that they would be arrested in connection with the non-bailable offence. 3. in the light of the submissions made, learned Public Prosecutor was asked to state the facts. He narrated the allegations made against petitioners. According to him, the Port Conservator filed a complaint alleging that petitioners trespassed into the office of the Port Conservator on 18.9.2008 at about 11 a.m with an application seeking some information under the Right to BA.6796/08 2 Information Act addressed to the Port Conservator. De facto complainant was not present in the office and hence, the application was handed over to the Sweeper in the office. The Sweeper returned the application to petitioners and they took some photographs in mobile phone of certain passes found in the office which were issued for transportation of sand. They also tore off some records available in the office and this information was conveyed to de facto complainant over phone. He gave a complaint and a crime was registered under Sections 451, 353 and 34 of the Indian Penal Code and 3(1) of the PDPP Act. 4. Learned counsel for petitioners submitted that the allegations made against petitioners are absolutely false. He also submitted that there is a specific motive for the de facto complainant to lodge a complaint like this against petitioners. It is submitted that this is a motivated attempt made by the de facto complainant with a view to harass petitioners by implicating them in a non-bailable offences, to ensure unwarranted arrest and detention of petitioners. All these happened because petitioners, who are human rights activists, were raising protest against illegal sand mining from Mogral Puthur River and Shiriya River which was carried on with the help of Police department and the Port BA.6796/08 3 Conservator of Kasaragod district. Unauthorised large scale of removal of sand for the last few months have been done from these rivers. Complaint after complaint were sent by first petitioner to the Honourable Chief Minister and copies are Annexure-B series dated 5.3.2008, 16.5.2008 and 22.7.2008. 5. Reports about the illegal activities flashed in the media and it is also reported that for illegal and unauthorised sand mining, huge amount of bribe was also given at Kasaragod Port Conservator's office. Those paper reports are Annexure-A series. Ultimately, due to the agitations a case was taken up in this matter by the Human Rights Commission and the report in respect of the same is Annexure-C. Petitioners wanted to put a stop to this illegal and unauthorised sand mining and for this purpose, they wanted to collect certain details from the office of the Port Conservator. Hence, a petition was filed under the Right to Information Act seeking certain details. Annexure-D is a petition filed under the Right to Information Act, which is addressed to the Port Conservator. He refused to give the details. Therefore, an appeal was filed against the Port Conservator by second accused in respect of non issuance of the information sought by him and ultimately, the Information Commissioner imposed a penalty of Rs.9,250/- BA.6796/08 4 against the Port Conservator and he was also directed to provide the information sought by second petitioner within a week. 6. Accordingly, on 18.9.2008, both petitioners went to the office of the Port Conservator to get the information and an application was also prepared under the Right to Information Act seeking certain information. They reached the office at 11 a.m on 18.9.2008. But de facto complainant was not present in the office. Petitioners gave the application brought by them to one Sukumaran, who was a staff in the office. On reading the application, Sukumaran became very ill-mannered and he tore off the application and threw it on the face of first petitioner. The remaining part of it was put in the waste basket. He also warned petitioners that if they ever step into the office once again seeking any information, they would lodge a complaint before the police alleging trespass and also that they have obstructed them from discharging official duty and destructed the office properties. 7. After the above incident, petitioners again made a complaint to the Honourable Chief Minister narrating all these incidents and requested him to take immediate action against said Sukumaran, it is submitted. Copy of the complaint is Annexure-E. While awaiting action in the said complaint which was forwarded to BA.6796/08 5 the Honourable Chief Minister, on 11.10.2008 at about 11.30 a.m, one Police Constable came to the house of petitioner No.1 and directed him to go to the Police Station immediately. Therefore, petitioners were repeatedly asked to surrender before the police. They also received Annexure-G series notices. It is at this juncture that petitioners have approached this Court with this application for anticipatory bail, it is submitted. 8. Learned Public Prosecutor submitted that a complaint was lodged by the Port Conservator only on 25.10.2008 before the police and it was based on this that the crime was registered as Crime No.754/2008 against the petitioners making the allegations narrated already in paragraph 3 above. 9. On hearing both sides in detail and on going through the documents produced, I find that I will be perfectly justified in granting anticipatory bail to petitioners, I am also satisfied if I refuse to intervene, I will be failing in my duty to render justice in a most deserving case. Provision under Section 488 Cr.P.C is introduced into the Code to invoke the powers thereunder in cases of this nature where possibility of a deliberate attempt of harassment cannot be ruled out. When such attempts are likely from the side of Government officials themselves that too against BA.6796/08 6 citizens who openly agitate against certain illegalities the responsibility of the superior courts is higher and the courts must act positively and without delay, to prevent any possible injustice. Hence, I issue the following directions: i) Petitioner shall be released on bail forthwith, in the event of their arrest on their executing a self bond for Rs.1,000/-. ii) Petitioners are at liberty to surrender before the Magistrate Court concerned and seek regular bail, in the light of this order. Petition is allowed. K.HEMA, JUDGE vgs.