IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Bail Appl..No. 6021 of 2009 PETITIONER: ACCUSED: C.K. SHIBU, S/O. KUMARAN, AGED 27 YEARS, CHERUKARA HOUSE, PASHANOOR P.O., THRISSUR DISTRICT. BY ADV. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA RESPONDENTS: STATE: COMPLAINANT: --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, OTTAPALAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 6021 OF 2009 ------------------------------------------------------ Dated this the 27th day of October, 2009 O R D E R The petitioner apprehends arrest by Ottapalam Police on an accusation of having committed non-bailable offence. No crime is registered against the petitioner. The petitioner proposed to marry Devika, daughter of one Kunjumony and Savithri at Manissery, Ottapalam. The engagement was on 12.7.2009. The parties decided to solemnize the marriage on 27.11.2009. The petitioner states that the father of Devika informed the petitioner and his family members that one Rukkiya had approached Devika's parents with an allegation that the petitioner was having illicit relationship with her. Though the petitioner tried to defend himself by stating that he had no relationship with Rukkiya, the parents of Devika were not prepared to accept the words of the petitioner. It is submitted by the petitioner that in view of the subsequent developments, the petitioner informed that he is not interested in marrying Devika. 2. Petitioner states that either Devika or her father or mother has filed a petition before the Ottapalam Police Station. Annexure I notice was issued to the petitioner to appear before the police on 9.10.2009. B.A. NO. 6021 OF 2009 :: 2 :: The petitioner is a photographer by profession. He states that he had gone to Kasaragod and, therefore, he could not appear on 9.10.2009 before police. Thereafter, the petitioner is being threatened by the police that he would be arrested and detained. 3. It is submitted by the learned counsel for the petitioner that even after the order dated 12.10.2009 passed by this Court not to arrest the petitioner, he was called to the police station and he was made to wait for several hours. However, the petitioner could not be arrested in view of the order dated 12.10.2009. It is submitted that the threat continues. 4. Learned Public Prosecutor submitted that he has received written instructions from the Sub Inspector of Police, Ottapalam Police Station. It reads as follows: “No case has been registered against the petitioner.” No details are furnished by the Sub Inspector of Police. At the same time, the allegation of the petitioner that he was being summoned to the police station remains unanswered. 5. Even if no crime is registered, the power under Section 438 of the Code of Criminal Procedure can be exercised. In Seyad A. and B.A. NO. 6021 OF 2009 :: 3 :: another v. State of Kerala and another (2009 (4) KHC 182), it was held as follows: “5. The fact that no crime is registered is not a bar to the grant of an order for anticipatory bail. Section 438 of the Code of Criminal Procedure provides that when any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply for a direction under the Section. It cannot be said that there would not be any 'accusation' within the meaning of Section 438 CrPC unless the First Information Statement is recorded. There could be an accusation even before the FIR is registered by the police. In Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632, Constitution Bench of the Supreme Court held thus: “Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.” In Prasad v. Circle Inspector of Police, 2003 (3) KLT 737: 2003 KHC 1186, it was held: B.A. NO. 6021 OF 2009 :: 4 :: “Registration of a crime is not sine qua non for invoking the powers under Section 438 of the CrPC. If that be so, the police would be able to delay the registration of the crime, get an application under Section 438 dismissed, thereafter register a crime and arrest the petitioners. The question is whether the apprehension of arrest entertained by the petitioners is reasonable or not.”” 6. Taking into account the facts and circumstances of the case, the nature of the offence and other circumstances, I am of the view that anticipatory bail can be granted to the petitioner. There will be a direction that in the event of the arrest of the petitioner by the Sub Inspector of Police, Ottapalam or by any of his subordinate officers, the petitioner shall be released on bail on his executing bond for Rs.10,000/- with two solvent sureties for the like amount to the satisfaction of the officer concerned. The Bail Application is allowed to the extent indicated above. (K.T.SANKARAN) Judge ahz/