IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 Bail Appl..No. 3342 of 2009() ---------------------------------------- CRIME NO.400/2009 OF THE KASARAGOD POLICE STATION. .................. PETITIONER/ACCUSED --------------------------------- 1. MOHAMMED ISHAK, AGED 41 YEARS, S/O.ABDULLA, SALA HOUSE, FIRDOSE NAGAR, UPPALA, KASARAGOD. 2. MRS.SHERIFA SAMAD, D/O.SAID IBRAHIM, NR.MANNANKUZHI STADIAM, FIRDOSE NAGAR, UPPALA, KASARAGOD. BY ADV. MR.T.B.SHAJIMON, SMT.GOVINDU P.RENUKADEVI. RESPONDENT/COMPLAINANT ------------------------------------------- STATE OF KERALA, REP.BY OF THE SUB INSPECTOR OF POLICE, KASARAGOD POLICE STATION, REP.BY THE PUBLIC PROSECUTOR, ERNAKULAM. BY PUBLIC PROSECUTOR MR.M.S. BREEZ. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. K.T. SANKARAN, J. --------------------------- B.A. No. 3342 of 2009 ------------------------------------ Dated this the 17th day of February, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No. 400/2009 of Kasaragod Police Station. 2. The offences alleged against the petitioners are under Sections 406, 420, 421, 422, 423 and 424 of the Indian Penal Code. 3. When the Bail Application came up for hearing on 04.01.2010, the following order was passed: “This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are accused Nos.1 and 2 in Crime No.400 of 2009 of Kasaragod Police Station. 2. The offences alleged against the petitioners are under Sections 406, 420, 421, 422, 423 and 424 of the Indian Penal Code. 3. The prosecution case is that the first petitioner took a housing loan of Rs.10 B.A. No. 3342 of 2009 2 lakhs from the de facto complainant Bank. The second petitioner, who is the wife of the first petitioner, stood as surety. The first petitioner did not construct the house in the property but, diverted the money. It is stated that the petitioners committed the offences alleged against them. 4. The learned counsel for the petitioners submitted that 62 crimes were registered by Manjeshwar Police against different persons on almost identical allegations and in 60 cases, anticipatory bail was granted by this Court a few months back. It is also submitted that the Bank has filed civil suit for realisation of the amount due to the Bank. 5. After having heard the learned counsel for the petitioners and the learned Public Prosecutor, I am of the view that before disposing of the Bail Application, an opportunity should be given to the petitioners to appear before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer at 9 A.M. on 11.1.2010 and 12.1.2010. The petitioners shall produce a copy of the order before the B.A. No. 3342 of 2009 3 investigating officer. Post on 18.1.2010. It is submitted by the learned Public Prosecutor that the petitioners will not be arrested until further orders in connection with Crime No.400 of 2009 of Kasaragod Police Station. Hand over copy to both sides. “ 4. Later, another order was passed on 29.01.2010, which reads as follows: “On 4/1/2010, an order was passed directing the petitioners to appear before the investigating officer on 11/1/2010 and 12/1/2010. The petitioners did not comply with that order. Crl.M.A.No.317/2010 was filed for extension of time to appear before the investigating officer. In that application, it is stated that the order was sent to the petitioners by courier on 8/1/2010, but it was delivered to the petitioners only on 13/01/2010. Therefore, the petitioners could not comply with the order dated 4/1/2010. To show that the article was sent by courier on 8/1/2010 and it was received by the counsel for the petitioners at B.A. No. 3342 of 2009 4 kasaragod on 13/1/2010, Annexures A1 and A2 were produced along with Crl.M.A. No.428/2010. 2. In the facts and circumstances of the case, I am of the view that before disposing of the Bail Application, an opportunity should be given to the petitioners to appear before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer at 9 A.M. on 3rd and 4th February, 2010. Post on 10/02/2010. 3. It is submitted by the learned Public Prosecutor that the petitioners will not be arrested until further orders in connection with Crime No. 400 of 2009 of Kasaragod Police Station, Kasaragod. The petitioners shall produce copy of this order before the investigating officer. Hand over copy to both sides. 5. It is submitted by the learned counsel for the petitioners and the learned Public Prosecutor that the petitioners have complied with the direction contained in the order dated 29.01.2010. B.A. No. 3342 of 2009 5 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 petitioners. There will be a direction that in the event of the arrest of the petitioners, the officer in charge of the police station shall release them on bail on their executing bond for Rs.15,000/- each with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: A) The petitioners shall report before the investigating officer between 9 A.M and 11 A.M. on alternate Mondays, till the final report is filed or until further orders; B) The petitioners shall appear before the investigating officer for interrogation as and when required; C) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence. D) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail. E) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed to the extent indicated B.A. No. 3342 of 2009 6 above. K.T. SANKARAN, JUDGE ln