IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 Bail Appl..No. 7634 of 2007() ----------------------------- CRIME NO. 300/07 OF FEROKE POLICE STATION PETITIONER/ACCUSED: ------------------------------------ C.P. MUJEEB RAHMAN, S/O. ABOOBACKER, CHERIYALLINGAL HOUSE, AMBALATHARA NILAM, OLAVANNA, KOZHIKODE DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: STATE: ------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, FEROKE POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22/01/2008, ALONG WITH BA NO. 335 OF 2008THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.Nos. 7634 of 2007 & 335 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of January, 2008 O R D E R Applications for anticipatory bail. The petitioners in these two cases apprehend arrest in Crime No. 300 of 2007 of Feroke Police station registered for offences punishable, inter alia, under Section 395 I.P.C. The petitioner in B.A. 7634 of 2007 is admittedly the third accused in the crime. The first petitioner in B.A. 335 of 2008 is the 4th accused in the crime. Petitioners 2 and 3 in B.A. 335 of 2008 have not been arrayed as accused so far. The petitioners apprehend imminent arrest. 2. The incident in question took place on 15.10.2007. A car in which the defacto complainant was travelling along with his family on their return from Pazhani, after a pilgrimage, was stopped by a group of 12 persons. They pulled out the lady passengers in the car. They forcibly got into the car. The defacto complainant was compelled to drive the car to certain places. He B.A.Nos. 7634 of 2007 & 335 of 2008 2 was ultimately robbed of the car as also the articles which were in the car. This is the crux of the allegations raised by the defacto complainant against the 12 unknown, but identifiable persons. F.I.R. was registered. Investigation is in progress. Accused 1 and 2 have already been arrested and enlarged on bail as per orders of this Court in B.A.No. 7000 of 2007 after they continued in custody for some time. 3. The learned Prosecutor at the outset submits that petitioners 2 and 3 in B.A. 335 of 2008 have not so far been arrayed as accused. But the needle of suspicion is pointed at them. They will have to be interrogated thoroughly. Their involvement will have to be cross checked. They may not be permitted to arm themselves with order of anticipatory bail. They may be directed to co-operate with the Investigating Officer. They shall not be subjected to any harassment. If materials are collected to confirm their complicity, then only they will be arrested and dealt with strictly in accordance with law, submits the learned Prosecutor. B.A.Nos. 7634 of 2007 & 335 of 2008 3 4. Coming to accused 3 and 4, the 4th accused contends that he was the owner of the vehicle as per an agreement with the title holder. He, who had thus come into possession, had entered into an agreement Annex.C, with with one Mohammed for sale of the vehicle. Only a token advance was paid, but substantial amounts remained to be paid and discharged. The said Mohammed had taken away the vehicle without returning the same to the 4th accused. He did not comply with the obligation under Annex.C agreement. The defacto complainant, one Ajayakumar, claimed possession of the vehicle under the said Mohammed. The whereabouts of the said Mohammed and the vehicle were not known and it was at that juncture that the 4th accused received information that the vehicle was passing through the area in question. It was then that the vehicle was stopped. No violence whatsoever was used against the occupants of the car. They were put into another taxi car and sent to their destination. All allegations are made vexatiously at the instance of the said Mohammed, who had defrauded the petitioner/A4. At any rate all that the petitioner/A4 had done was to stop his car and take the same into his custody. There B.A.Nos. 7634 of 2007 & 335 of 2008 4 was no element of any crime involved in such conduct of the petitioner, submits the counsel. 5. The same counsel, who appears for the third accused, submits that in so far as the third accused is concerned, he was not in any way connected with the crime. The worst allegation against him is that he was the owner of the car in which the miscreants had come to the scene. Even admittedly this was not a pre-planned assignment. On seeing the car proceed along that route it was intercepted and stopped. Merely because the car of the third accused was used for the miscreants to reach the scene, he may not be subjected to vexatious arrest and detention. He does not deserve to endure the trauma of arrest and detention. Subject to any appropriate conditions he may be granted anticipatory bail, prays the counsel. 6. The learned Prosecutor opposes the applications. The application in so far as accused 3 and 4 are concerned, the learned Prosecutor submits that the indications galore that not only the vehicle of the third accused, he was also personally present to take part in the crime. As regards the 4th accused, the learned P.P. submits that it was B.A.Nos. 7634 of 2007 & 335 of 2008 5 not a case where the occupants were not harassed, but they were peacefully permitted to get out of the car. There was wanton acts of mischief and violence on the part of the 4th accused, submits the learned P.P. 7. I have considered all the relevant inputs. The case diary has been placed before me. I have perused the same. At this early stage of investigation, I shall carefully avoid any detailed discussion on merit about the acceptability of the allegations raised or the credibility of the data collected. Suffice it to say that I am satisfied that the petitioners deserve to be interrogated for resolution of the mystery in the crime. On an anxious consideration of all the relevant inputs, I am unable to find any circumstance justifying or warranting the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioners. This, I agree with the learned Prosecutor, is a fit case where the petitioners must be directed to appear before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course. The petitioners may be directed to surrender before the Investigating B.A.Nos. 7634 of 2007 & 335 of 2008 6 Officer or the learned Magistrate and then seek regular bail, submits the Prosecutor. The petitioners 2 and 3 in B.A. 335 of 2008 must appear before the Investigating Officer and co-operate with the investigators for a proper and expeditious investigation. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioners appear before the learned Magistrate and apply for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously. (R. BASANT) Judge tm