IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 Bail Appl..No. 6211 of 2008(D) ------------------------------------- CRIME NO.1050/08 OF KOLLAM EAST POLICE STATION PETITIONER : ---------------- G.VIPINAN, CHIEF EDITOR, 'POLYGRAPH', MALAYALAM FORTNIGHTLY, S/O.GANGADHARAN VAIDYAR, AGED 54 YEARS, RESIDING AT PADMA VILAS, MUNDAKKAL WEST, KOLLAM. BY ADV. SRI.V.JAYAPRADEEP RESPONDENT : ----------------- STATE OF KERALA, REP.BY THE CIRCLE INSPECTOR OF POLICE KOLLAM EAST POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29/10/2008 ALONG WITH BA 6298 OF 2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING : K.HEMA, J. ------------------------------------------------- B.A.Nos.6211 & 6298 of 2008 ------------------------------------------------- Dated this the 29th day of October, 2008 O R D E R These petitions are for anticipatory bail. 2. Petitioner in B.A.No.6211/08 is the first accused and petitioner in B.A.No.6298/08 is the second accused. They are father and son respectively. According to prosecution, first accused threatened to publish a defamatory statement concerning the defacto complainant unless he gave him money. He approached him for money on several occasions and he induced the defacto complainant to give him money by intentionally putting him under fear of injury etc. Thereafter, he also published a defamatory statement against the defacto complainant and the same was circulated through the second accused. Both of them in furtherance of common intention committed offence under Section 384 IPC. 3. Learned counsel for the petitioners submitted that the defacto complainant is on inimical terms with the first accused since a very long time. Based on a complaint dated 9.4.2008 BA Nos.6211/08 & 6298/08 2 made by the first accused before the local authority, an order was passed as Annexure A1 to demolish the 5th floor of the textile shop of the defacto complainant. He also effected a publication in the fortnightly published by him on 8.6.2008 stating that the defacto complainant, with the aid of Sales Tax Assistant Commissioner, was evading payment of tax. For these reasons, the defacto complainant had enmity towards first accused. 4. On 6.8.2008, at about 12.30 p.m., in the broad day light first accused was brutally assaulted and both his legs and hands were fractured. He also sustained fracture and serious injuries to other parts of the body and he was hospitalised. There was an attempt to commit murder. On a complaint lodged by him, a crime no.858/08 was registered under Sections 326 and 307 IPC. At the time of lodging the complaint, first accused was under the impression that the cause for the assault must be the publication effected by him against the Sales Tax Assistant Commissioner on 30.6.2008 and he gave a statement accordingly. But, on investigation, it was revealed that A1 to A8 in that crime who were engaged by A9, who is the Advertisement Contractor of the defacto complainant, to assault first petitioner. BA Nos.6211/08 & 6298/08 3 A9 applied for anticipatory bail, but, it was dismissed by this Court observing that his interrogation is required since he will have many facts within his exclusive knowledge to be revealed in interrogation. He also filed a petition to quash the FIR against him, but, that petition was also dismissed. Still , he has not surrendered so far. In this background, the defacto complainant in this case apprehends that he is likely to be implicated in the offence in crime no.858/08. A1 to A8 in the said crime are still in jail and the attempt of the defacto complainant is to see that the petitioner is also detained in the same jail, so that his life can be endangered at the hands of those persons. 5. With this intention, present complaint is lodged against first accused. His son is also unnecessarily dragged into this case, with a view to harass both of them. Petitioner is still on bed, having sustained several fractures to his body. It is also pointed out that the defacto complainant's wife had filed a complaint to the DGP on 24.9.2008 and it was forwarded to the East Kollam Police Station. But, in the meanwhile, a complaint was lodged by the defacto complainant on 28.9.2008, based on which, the present crime is registered. BA Nos.6211/08 & 6298/08 4 6. It is submitted by learned counsel for petitioners that the relevant defamatory publication itself shows that it is published by one Bhadran. He is none other than the neighbour of the defacto complainant, who has enmity towards him. The publication also reveals that there was some affair between defacto complainant's son and his daughter and he also has an axe to grind against defacto complainant. But, to the information of the petitioners, the said Bhadran is not so far questioned in this case. 7. If the petitioners are arrested on the allegations made, it is likely that they will be tortured at the police station, since the defacto complainant is influential and especially his wife lodged the complaint before the DGP, instead of approaching the local police. Learned counsel for petitioners also submitted that even if the entire allegations are accepted, there is a long delay in lodging the complaint. If there was a genuine grievance for the complainant that petitioner was harassing defacto complainant since 2004 onwards, it is unlikely that he will not take any action against first accused till 2008. Despite the publication effected by first accused against him on BA Nos.6211/08 & 6298/08 5 30.6.2008 in the fortnightly published by him making specific allegations, defacto complainant did not file any complaint. According to him, the present move is only a counter blast to crime no.858/08. The relevant dates and specific allegations to constitute offence under Section 384 IPC are absent in this complaint, it is submitted. 8. Learned public prosecutor submitted that the publication contains highly defamatory materials against defacto complainant and his entire family. Even the name of his wife and other family members are tarnished. Though the name of one Bhadran is seen in the publication, such a person is not traced out so far. As per the allegations in the complaint, from the year 2004 onwards, there was threat from first accused and second accused was distributing the publication. He however, conceded that the specific dates relating to payment, threat etc. are not mentioned in the complaint. On hearing both sides, considering the various submissions made and particularly the circumstances under which the complaint is lodged, I think it fit to grant anticipatory bail to petitioners. BA Nos.6211/08 & 6298/08 6 Hence, the following order is passed: Petitioners shall surrender before the Magistrate court concerned within ten days from today and they shall be released on bail on their executing bond for Rs.25,000/- each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate on the following conditions: (i) Petitioners shall report before the Investigating Officer as and when directed and co-operate with the investigation. (ii) Petitioners shall not influence or intimidate any witness or tamper with evidence or commit any offence while on bail. The petitions are allowed. K.HEMA, JUDGE csl