IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 Bail Appl..No. 7257 of 2009() ----------------------------- CRIME NO.172/09 OF MELUKAVU POLICE STATION PETITIONER/IST ACCUSED ------------------------------------------ RAFEEQUE, AGED 38, S/O.HASSSAN PILLAI, THOONGUMPARAMBIL (H), THEKKEKARA, ERATTUPETTA. BY ADV. SRI.A.MOHAMMED RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 15/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.7257 of 2009 --------------------------------------------- Dated this the 15th day of December, 2009 ORDER The petitioner had filed Bail Application No.6007 of 2009 under Section 438 of the Code of Criminal Procedure for anticipatory bail. That application was dismissed by the order dated 27th October, 2009. The present Bail Application, namely, Bail Application No.7257 of 2009 is filed by the petitioner for the same relief. 2. For the sake of convenience, the order dated 27th October, 2009 in Bail Application No.6007 of 2009 is extracted below: “This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.1 in Crime No.172 of 2009 of Melukavu Police Station, Kottayam District. 2. The offences alleged against the petitioner are under Sections 353 and 341 read with Section 34 of the Indian Penal Code. 3. On 4.7.2009 at 4.30 A.M., the Intelligence Officer (IB), Intelligence Squad of BA No.7257/2009 2 the Commercial Taxes Department, Thodupuzha and the inspectors were conducting vehicle checking at Muttom. A Tata mini lorry bearing registration No.KL9Q 8040 was directed to be stopped. It is stated that the lorry was having full load of live chicken. The driver of the vehicle did not stop. He drove the vehicle in high speed towards Melukavu direction. The officers of the Commercial Taxes informed the Melukavu Police Station over phone. Some police men tried to intercept the mini lorry. But, the mini lorry was not stopped. The road was a Ghat road and one side of the road, it was deep valley. Another vehicle, namely, a Mahindra Scorpio jeep bearing registration No.KL07AX 837 overtook the department vehicle. Thereafter, the Scorpio jeep was driven in a zigzag manner so as to prevent the department jeep from overtaking the mini lorry. The mini lorry could thus escape from the inspection by the officers of the Commercial Taxes Department. 4. The allegation is that the petitioner was driving the mini lorry. On 7.7.2009, the Intelligence Officer (IB), Commercial Taxes, Idukki at Thodupuzha submitted a detailed petition to the Station House Officer, Melukavu BA No.7257/2009 3 Police Station. The F.I.R. Was registered only on 13.9.2009. When a serious allegation is raised involving offence under Section 353 by the Commercial Taxes Officer and the grievance is put in writing, normally there should not be any delay to register the F.I.R. In the present case, even before filing the petition, when driver of the mini lorry was trying to escape, information was given to the police. The police personnel of Melukavu Police Station tried to intercept the vehicle. That means, the police officers were also aware of the incident. Even without a petition from the officers of the Commercial Taxes Department, the police could register a crime. Why such delay was occasioned is a matter to be explained by the Sub Inspector of Police, Melukavu. A report shall be filed by the Sub Inspector of Police, Melukavu Police Station within a period of two weeks. From the facts narrated above, it is clear that the petitioner is not entitled to the discretionary remedy under Section 438 of the Code of Criminal Procedure. The prosecution case is that the petitioner was driving the lorry. The discretionary relief under Section 438 of Crl.P.C., if granted in favour of the petitioner, it BA No.7257/2009 4 would adversely affect the proper investigation of the case. For the aforesaid reasons, the Bail Application is dismissed. However, the Bail Application shall be posted after two weeks for getting the report from the Sub Inspector of Police, Melukavu Police Station.” There are no compelling circumstances or change of circumstances warranting the consideration of the matter afresh. It is not proper to entertain a second application for bail in the facts and circumstances of the case. The Bail Application is accordingly dismissed. K.T.SANKARAN, JUDGE csl