IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 Bail Appl..No. 908 of 2010 CRIME NO.836 OF 2009 OF HOSDURG POLICE STATION, KASARAGOD. PETITIONER/ACCUSED NO.2 ------------------------------------------- P.V.SANKARAN, L.D.CLERK, NEHRU ARTS & SCIENCE COLLEGE, PADANNEKKAD, KANHANGAD, KASARAGOD DISTRICT. BY ADV. SRI.SUNNY MATHEW RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA THROUGH THE SUB INSPECTOR OF POLICE, HSDURG POLICE STATION, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 908 OF 2010 ------------------------------------------------------ Dated this the 1st day of March, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.2 in Crime No.836 of 2009 of Hosdurg Police Station, Kasaragod District. 2. The petitioner had filed B.A.No.342 of 2010 for anticipatory bail. That application was dismissed by the order dated 29.1.2010. For the sake of convenience, the order dated 29.1.2010 is extracted below: “This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.2 in Crime No.836/2009 of Hosdurg Police Station, Kasaragod District. 2. The offences alleged against the petitioner are under Sections 120-B, 381, 465, 468 and 420 read with Section 34 of the Indian Penal Code. B.A. NO. 908 OF 2010 :: 2 :: 3. The gist of the prosecution case is the following: The first accused was a candidate for B.Com Supplementary Examination of Kannur University. The examination centre was at Nehru College, Kanhangad. On 17.12.2009, the first accused did not appear for the examination. The Examiner had noted that the first accused was absent. However, his answer sheet was found in the bundle of answer sheets sent to the University. It was also found out that corrections were made in the attendance sheet and other records in order to make it appear that the first accused appeared for the examination held on 17.12.2009. The prosecution case is that accused No.2(petitioner), who was working as a Lower Division Clerk in Nehru College, Kanhangad provided the question papers and answer sheets to the first accused. It is alleged that the first accused wrote the answers in the answer sheet sitting in another room near the Canteen of the College and entrusted the same to the second accused. The second accused, misusing his position as a L.D. Clerk, had placed the answer sheet in the bundle of answer sheets. It is also alleged that he manipulated the entries in the relevant records to make it appear that the first accused appeared for the examination. B.A. NO. 908 OF 2010 :: 3 :: 4. The offence alleged against the petitioner is grave in nature. Taking into account the facts and circumstances of the case, I do not think that this is a fit case where anticipatory bail can be granted to the petitioner. Custodial interrogation of the petitioner may be required in the case. If anticipatory bail is granted to the petitioner, it would adversely affect the proper investigation of the case. I am also of the view that the petitioner is not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. For the aforesaid reasons, the Bail Application is dismissed.” 3. The learned counsel for the petitioner submitted that all the relevant contentions were not put forward in B.A.No.342 of 2010. In paragraph 3 of the present Bail Application, the petitioner states thus: “3. The petitioner submits that he is totally innocent of the allegations levelled against him. The supplementary examination are conducted by responsible officers such as the Chief Invigilator, the Deputy Chief Invigilator and six other invigilators. The sealed cover containing the question papers will be opened in the presence of the Chief Invigilator, Dy.Chief B.A. NO. 908 OF 2010 :: 4 :: Invigilator and other Invigilators. The said cover will be opened just half an hour prior to the examination. Immediately after opening the sealed cover, the question papers will be counted to verify whether the same tally with the numbers given on the cover. In the instant case, there is no allegation that the seal affixed in the cover was tampered when the same was opened or that there was shortage of question papers. The answer sheets also are distributed after following the same procedure. When the answer sheets are given, the number of answer sheets supplied will have to be recorded in the register. The petitioner, who is only an L.D.Clerk, has no role to play in the above procedure. It appears that some of the Invigilators had facilitated the first accused to write the examination and when the same came to the attention of the Principal, the petitioner is made as Scapegoat. At any rate the custodial interrogation is not at all required. The respondent, Police now making hectic efforts to arrest the petitioner.” 4. At the time when B.A.No.342 of 2010 was disposed of, I had occasion to peruse the case diary and to hear the arguments of the learned counsel for the petitioner at length. The facts stated in paragraph 3 of the Bail Application are not sufficient to persuade me to take a different view from the view taken in B.A.No.342 of 2010. I B.A. NO. 908 OF 2010 :: 5 :: do not find any change of circumstance or any other ground warranting consideration of the request for anticipatory bail on the second occasion. The Bail Application is, therefore, dismissed. (K.T.SANKARAN) Judge ahz/