IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 Bail Appl..No. 6390 of 2009 CRIME NO.407 OF 2009 OF ERATTUPETTA POLICE STATION, KOTTAYAM PETITIONER/2ND ACCUSED ------------------------------------------ BIJU, AGED 33 YEARS, S/O.GOPI, CHILAMBAMKUNNEL HOUSE, PATHAMPUZHA, MANAMKARA, POONJAR, MEENACHIL TALUK, ERATTUPETTA. BY ADV. SRI.BIMAL K.NATH SRI.S.JAMAL SRI.E.M.SUNIL KUMAR SRI.SREEVALSAN.V RESPONDENT: --------------- SUB INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 19/11/2009, ALONG WITH BA NO.6393 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS. 6390 & 6393 OF 2009 ------------------------------------------------------ Dated this the 19th day of November, 2009 O R D E R These are applications for anticipatory bail under Section 438 of the Code of Criminal Procedure filed by one Biju,who is the second accused in Crime Nos.407 of 2009 and 408 of 2009 of Erattupetta Police Station. 2. The offence alleged against the petitioner in Crime No.407 of 2009 is under Sections 457 and 380 read with Section 34 of the Indian Penal Code. The offence relates to theft of 200 kgs. of rubber sheet. The offence alleged in Crime No.408 of 2009 is under Section 379 read with Section 34 of the Indian Penad Code. The subject matter of theft in that case is a motor pump set. 3. The petitioner and the first accused were arrested by the Kumali Police and Crime No.374 of 2009 was registered under Section 41(1)(d) of the Code of Criminal Procedure. It is stated that confession statement of the accused persons were accorded in that B.A. NOS.6390 & 6393 OF 2009 :: 2 :: case and on the basis of the same, Crime Nos.380 of 2009 and 381 of 2009 were registered by the Kumali Police. Those crimes were subsequently transferred to Erattupetta Police Station since the offences were committed within the jurisdiction of that police station. Crime No.380 of 2009 of Kumali Police Station was re-registered as Crime No.407 of 2009 of Erattupetta Police Station, while Crime No.381 of 2009 of Kumali Police Station was re-registered as Crime No.408 of 2009 of Erattupetta Police Station. 4. It is submitted by the learned counsel for the petitioner that the petitioner was in judicial custody in Crime No.374 of 2009 and he was released on bail on 23.9.2009 in that case. At the time of registration of Crime No.380 of 2009 and 381 of 2009 by Kumali Police, the petitioner was in judicial custody. Therefore, the counsel submits that the petitioner cannot be arrested now and he is entitled to get anticipatory bail. 5. The learned Public Prosecutor submitted that though the petitioner was arrested and he was remanded to judicial custody in Crime No.374 of 2009 of Kumali Police Station, his arrest was not recorded either in Crime No.380 of 2009 or in Crime No.381 of 2009 B.A. NOS.6390 & 6393 OF 2009 :: 3 :: of Kumali Police Station. Therefore, it cannot be said that he was in judicial custody in those two crimes. If that is so, it cannot be said that he was in judicial custody in Crime No.407 of 2009 and 408 of 2009 of Erattupetta Police Station which were re-registered on transfer of the crimes from Kumali Police Station. 6. The fact that a person is involved in several crimes and he is in judicial custody in one of the crimes does not mean that he is in judicial custody in all the crimes, unless his arrest is recorded in those cases. That the accused was in judicial custody in one crime and that the other crimes were registered at such point of time is not a ground to hold that he must be deemed to be in judicial custody in all the crimes. The release of the accused on bail in one case, therefore, cannot be treated as a bar for his arrest in the other cases. Therefore, I am not inclined to accept the contention of the petitioner that the petitioner is not liable to be arrested at this point of time. 7. The next question to be considered is whether the petitioner is entitled to anticipatory bail, in the facts and circumstances of the case. The offences alleged are under Section B.A. NOS.6390 & 6393 OF 2009 :: 4 :: 379 or 380 and 457 of the Indian Penal Code. The first accused is involved in more than ten crimes of similar nature. It is alleged that the second accused is the close associate of the first accused. In a case of this nature, I do not think that the discretionary relief under Section 438 should be granted to the petitioner. I am not inclined to exercise the discretion under Section 438 of the Code of Criminal Procedure in favour of the petitioner. If the petitioner is granted anticipatory bail, it would certainly adversely affect the smooth investigation of the case. For the aforesaid reasons, the Bail Applications are dismissed. (K.T.SANKARAN) Judge ahz/