IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 Bail Appl..No. 1041 of 2008() ----------------------------- CRIME 9/08 OF KATTOOR POLICE STATION .................... PETITIONER/ ACCUSED NO.3: ------------------------------ NAUFAL.P.K., ALIAS IKRU, S/O.KUNJIMON, PADARALAPARAMBIL HOUSE, PONGANAM POST, THRISSUR DISTRICT. BY ADV. SRI.C.PRABIN BENNY RESPONDENTS: COMPLAINANT: ------------------------- SUB INSPECTOR OF POLICE, KATTOOR POLICE STATION, THRISSUR DISTRICT REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR ADV.SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10/03/2008, ALONG WITH BA NO. 1044 OF 2008 BA NO. 1209 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` B.A. Nos. 1041, 1044 and 1209 OF 2008 ```````````````````````````````````````````````````` Dated this the 10th day of March, 2008 O R D E R These applications are for anticipatory bail. The petitioners face allegations in a crime registered alleging offences punishable, inter alia, under sections 452, 354 and 323 IPC. The crux of the allegations is that the 1st accused had entrusted a mobile phone with the de facto complainant for sale thereof. The same was allegedly sold but the proceeds were not handed over to A1. Because of this animosity, the three accused persons allegedly had trespassed into the residential building of the de facto complainant. He was allegedly assaulted and hurt was caused to him. The mother of the de facto complainant was allegedly assaulted indecently. The incident took place on 6.1.08. Crime has been registered. Investigation is in progress. The petitioners apprehend imminent arrest. BA.1041/08 & connected cases : 2 : 2. The learned counsel for the petitioners submit that the petitioners are innocent. In fact, the disputes have been settled between the de facto complainants(CWs 1 and 2, the son and the mother) and the petitioners. He has no grievance now. He has sworn to an affidavit before an Advocate. In these circumstances, anticipatory bail may be granted to the petitioners, it is prayed. 3. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor, after taking instructions, submits that to the best knowledge of the investigator no bona fide settlement has taken effect. It is submitted that the de facto complainant and his mother were threatened to submit that there is no willing and voluntary settlement. In these circumstances, the alleged settlement may not be reckoned as a relevant circumstance to grant anticipatory bail to the petitioners. In any view of the matter, the petitioners may not be granted anticipatory bail, it is submitted. 4. The learned counsel for the petitioners submit that BA.1041/08 & connected cases : 3 : the investigating officer has animus against the petitioners and that is why such stand is taken by the investigating officer. The learned counsel for the petitioners pray that the petitioners may be given an opportunity to surrender before the learned Magistrate and seek regular bail without the threat/risk of their arrest by the police and going into police custody except through court. 5. Having considered all the relevant circumstances, I am satisfied that directions under section 438 Cr.P.C. can be issued in favour of the petitioners to enable them to surrender before the learned Magistrate and seek regular bail without the threat and risk of arrest by the police and incarceration before they go into the custody of the court. They can, I am satisfied, be given an opportunity to surrender before the learned Magistrate and seek regular bail. 6. In the result, these petitions are allowed. Following directions are issued under Section 438 Cr.P.C in favour of the petitioners. BA.1041/08 & connected cases : 4 : i) Petitioners shall surrender before the learned Magistrate having jurisdiction at 11 a.m on 17.3.08. They may, after giving prior notice to the Prosecutor in charge of the case, apply for bail. The learned Magistrate must pass appropriate orders on such application by the petitioners and any other application to be filed by the police. The petitioners shall thereafter abide by the orders to be passed by the learned Magistrate. (ii) If the petitioners do not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall thereafter be at liberty to arrest the petitioners and deal with them in accordance with law, as if these directions were not issued at all. (iii) If they were arrested prior to 17.3.08, they shall be released from custody on their executing a bond for Rs.25,000/- undertaking to appear before the learned Magistrate on 17.3.08. BA.1041/08 & connected cases : 5 : 7. The learned Public Prosecutor submits that he has information that the 1st accused has already been arrested by the police in connection with some other case. The learned counsel for the 1st accused is not sure of that circumstance. If the 1st accused has been so arrested, needless to say, the police or the petitioner can move the court concerned to get his arrest recorded in the instant case and then seek regular bail. 8. Needless to say, it shall be open to the petitioners to satisfy the learned Magistrate that Cws 1 and 2 have willingly and voluntarily settled the disputes and compounded the offence. (R.BASANT, JUDGE) aks