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. 6305 of 2008() ----------------------------- CRIME NO.396/2008 OF MULAMTHURUTHY POLICE STATION PETITIONER/ACCUSED:- ---------------------------------------- S.DASAN NAIR AGED 56/08 S/O P.SREEDHARAN NAIR, R/A 45/2160 L, KARSHAKA ROAD, VADUTHALA, ERNAKULAM. BY ADV. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI RESPONDENT(S): COMPLAINANT --------------- 1. STATE OF KERALA, REP. BY INSPECTOR OF POLICE MULAMTHURUTHY POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, ERNAKULAM. 2. V.K.MOHANAN, BRANCH IN CHARGE M/S.HAZEL MERCANTILE LTD. REGISTERED OFFICE AT 181 ASOKA CENTRE, 2ND FLOOR G.T.HOSPITAL COMPLEX, LT ROAD, MUMBAI - 400 001 AND BRANCH OFFICE AT 2E/F CHURCHES SQUARE, BLOSSOM KOCHIN ROAD, ELAMKULAM, KADAVANTHRA P.O. KOCHI - 20. (IMPLEADED AS ADDITIONAL 2ND RESPONDENT AS PER ORDER IN CRL.M.A.NO.6128/2008) PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR SRI.V.M.KURIAN FOR ADDL.RESPONDENT SRI.MATHEW B. KURIAN FOR ADDL.RESPONDENT SRI.K.T.THOMAS FOR ADDL.RESPONDENT SRI.C.N.SREEKUMAR FOR ADDL.RESPONDENT 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.6305 of 2008 --------------------------------------------- Dated this the 12th November, 2008 O R D E R This petition is for anticipatory bail. 2. According to prosecution, petitioner is an employee of defacto complainant company. He is the Marketing Manager in the company and he takes orders from different customers and those orders are sent to the company at Mumbai and the company, on confirmation, would issue delivery orders to the Marketing Manager and on receipt of such delivery orders, the goods are to be delivered from the godown, which is under the control of first accused. Petitioner is the first accused in the crime and he colluded with the other accused and, without informing the company or getting delivery orders, supplied various goods to various customers, including the fourth accused and obtained huge amount and thereby, misappropriated the amount. He, along with three others thus, committed offence under Section 409 and 34 of Indian Penal Code. 3. Learned public prosecutor submitted that this is the second application for anticipatory bail. There is absolutely no BA No. 6305/2008 2 change in the circumstance to entertain this application. The order was passed as early as on 1.9.2008, dismissing the anticipatory bail application. Learned public prosecutor also submitted that there are sufficient materials in the case diary to prove that petitioner has committed the offence and removed the articles from the godown. He is in charge of the godown as a Marketing Manager. 4. Learned counsel for petitioner submitted that petitioner is not in charge of the godown. He is only a Marketing Manager, who has to take orders from various customers and sent it to the company. Even if he wants to remove the goods from the godown it cannot be done without the knowledge of the Manager, the godown keeper etc. But, none of the staff in the company are made accused in this case. Only, petitioner is arrayed as accused no.1. It is also submitted that a suit is filed by the company against petitioner and an attachment order is also issued. Petitioner's daughter is getting married and in such circumstances, if petitioner is arrested and detained, it will cause irreparable injury and harm to the petitioner. Therefore, anticipatory bail may be granted, it is submitted. 5. On hearing both sides and on going through the order BA No. 6305/2008 3 passed by me in the earlier application for anticipatory bail on 1.9.2008 in B.A.No.5062/2008, I am satisfied that in the nature of allegations made against petitioner, it is not a fit case to grant anticipatory bail. I had already observed in the earlier order that considering the allegations levelled against petitioner, many facts will be in the exclusive knowledge of petitioner and those can be brought only by interrogation by the police. Such interrogation will be necessary for an effective investigation into the crime. 6. If anticipatory bail is granted, it will adversely affect the investigation and this court shall not stand in the way of a smooth investigation by granting anticipatory bail to petitioner. In the earlier order passed, I have specifically observed that petitioner's innocence, if any, can be disclosed to the Investigating Officer at the time of investigation. 7. The order in the earlier application for anticipatory bail was passed as early as on 1.9.2008. The crime was registered on 12.7.2008. The investigation is in a stand still, since, petitioner could not be arrested or interrogated. Instead of co-operating with investigation, petitioner again absconded for the past about more BA No. 6305/2008 4 than two months of registration of crime and approached this court by filing this anticipatory bail application again. The conduct itself dissuades this court from granting anticipatory bail. The remedy under Section 438 Crl.P.C. is a discretionary remedy and it cannot be exercised in favour of person, exhibiting such conduct, in evading law. 8. This court cannot aid an accused, directly or indirectly, to abscond. I am satisfied that petitioner has been evading investigation and by entertaining this petition, I will only be aiding the party to abscond again. i) Therefore, petitioner is directed to surrender before the Investigating Officer forthwith and co-operate with investigation. ii) Whether he surrenders or not, police is at liberty to arrest petitioner at any time and proceed in accordance with law. iii) No petition by petitioner under section 438 of the code shall be entertained in this crime hereafter. With this direction, petition is dismissed. K.HEMA, JUDGE csl