IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 Bail Appl..No. 7388 of 2008() ----------------------------- CRMP.9752/2008 of J.M.F.C.-I,PATHANAMTHITTA CRIME NO.919/08 OF PATHANAMTHITTA POLICE STATION PETITIONER: -------------------- ALEX.T.GEORGE @ ALEX THANKACHAN MULAKKAL HOUSE, JESUS ROAD NANNUAKKAD PO., PATHANAMTHITTA. BY ADV. SRI.T.P.PRADEEP RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI.M.S.BREEZE THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 05/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No.7388 of 2008 ----------------------------------------- Dated this the 5th December, 2008 O R D E R This petition is for bail. 2. The alleged offences are under Sections 341, 294(b), 308 and 506(ii) of the Indian Penal Code. According to prosecution, on 11.11.2008 at about 6 PM, accused wrongfully restrained de facto complainant, abusing him in obscene language and also assaulted him used chopper. 3.Learned counsel for petitioner submitted that allegations made against petitioner are absolutely false. Even as per the prosecution case, he attempted to cut with a chopper, but no injury was caused, since he evaded. This is another attempt made by de facto complainant to harass petitioner and to see that petitioner is detained in custody, with the active assistance of a Circle Inspector of Police, it is submitted. It is pointed out that earlier also de facto complainant filed similar complaint, based on which, a crime was registered as Crime No.724/2008 and this Court was BA.7388/08 2 pleased to grant anticipatory bail, as per order dated 29.10.2008 in B.A.No.6238 of 2008. 4. Petitioner was directed to surrender before investigating officer within seven days from the date of order and he accordingly appeared before the investigating officer on three days from 4.11.2008 onwards, but the Circle Inspector of Police, under the influence of de facto complainant, refused to record the arrest. On 11.11.2008, de facto complainant came in front of petitioner's house along with one Chopra Rajesh in a Lancer car and created some commotion from the road in front of the house. This was to provoke petitioner to commit some offence. 5. Since petitioner is aware of the consequence of his act petitioner did not even open the door or reacted to the incident. But, within a few minutes, the police party, including the Circle Inspector of Police, Sub Inspector of Police and Probationary Sub Inspector came to the house of petitioner and broke open the house as evidenced by the photographs showing the damage caused to the house. This was at the instance of de facto complainant who is rich and influential. He BA.7388/08 3 was a member of a goonda gang and later he became highly influential. 6. Petitioner was physically assaulted from his house by the police party and he was removed to the police station and detained there. He was attacked from the police station also. Even then, arrest was not recorded. On the next day on 12.11.2008, the arrest was recorded by the police but it was made to appear petitioner was arrested from some other place and he was produced in Court in Crime No.724 of 2008 and also in this case. He was remanded to custody, despite the order passed by this Court in the anticipatory bail application directing release of petitioner on bail in Crime No.724/08, since petition was seriously opposed. 7. An affidavit is sworn in by Sri.George Koshi, who is the President of the Bar Association, who was also a Public Prosecutor, who was appearing for petitioner in the Magistrate Court, stating that he had requested the Circle Inspector of Police to record the arrest but he was giving some lame excuses and not recording the arrest. Though he assured that delay in arrest will not lead to any problem for petitioner, BA.7388/08 4 petitioner was remanded to custody with effect from 12.11.2008 in this case. It is also submitted by learned counsel for petitioner that the intention of the Circle Inspector of Police appears to be to book petitioner in the Kerala Anti- Social Activities (Prevention) Act, 2007 and further harass petitioner. It is also understood that more false cases will be foisted against petitioner and that a representation was given to the Human Rights Commission. 8. Learned Public Prosecutor submitted that charge sheet is laid in this case on 13.11.2008 and hence, he is not opposing the bail application. On hearing both sides, I am satisfied that it is only fit and proper to grant bail to petitioner forthwith. It is unfortunate that in a case of this nature, learned Magistrate has remanded petitioner to custody, in a most mechanical manner. I have already issued notice to the Circle Inspector of Police to file an affidavit and appear in person before this Court (vide order dated 5.12.2008 in B.A.No.7387 of 2008). Directions were issued to Director General of Police also to take necessary action in the matter. A report is also called for BA.7388/08 5 from learned Magistrate under which circumstance petitioner was remanded to custody despite the order passed by this Court in anticipatory bail. In the above circumstances, the following order is passed: i) Petitioner shall be released forthwith on bail on his executing a self bond for Rs.10,000/- on condition that he will appear in court without fail. Petition is allowed. K.HEMA, JUDGE vgs.