IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 3731 of 2007()
1. JOSE ANTONY, AGED 33 YEARS, S/O. ANTONY,
... Petitioner
Vs
1. CIRCLE INSPECTOR OF POLICE,
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.PRADEESH CHACKO
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :20/06/2007
O R D E R
R. BASANT, J.
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B.A.NO. 3731 OF 2007
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Dated this the 20th day of June, 2007
ORDER
Application for anticipatory bail. A crime was registered,
inter alia, under Secs.307 and 120-B of the IPC. Accused 1 to
5, who allegedly proceeded in a vehicle, had allegedly
committed the offences. In the course of investigation, six
more accused have been arrayed. The petitioner is not one of
them. The petitioner’s vehicle was allegedly used by the
miscreants. The petitioner received a notice under Sec.160 of
the Cr.P.C. to appear before the Investigating Officer. On
that particular day, the petitioner had some difficulties and he
could not appear. The Investigating Officer is not accepting
the explanation of the petitioner and is threatening him that he
shall be arrayed as an accused. In these circumstances, the
petitioner has come before this Court with a prayer that
directions under Sec.438 of the Cr.P.C. may be issued.
B.A.NO. 3731 OF 2007 -: 2 :-
2. Notice was given to the learned Public Prosecutor. The
learned Public Prosecutor submits that, at the moment, the
petitioner is not arrayed as an accused at all; but the petitioner
will have to be interrogated. His vehicle was used by the
miscreants. The nexus/linkage, if any, of the petitioner with the
offence will have to be ascertained. The possibility of his being
arrayed as an accused cannot be ruled out, though, at the
moment, there is no such proposal. It all depends on what turns
upon the interrogation of the petitioner. The petitioner may not
be permitted to arm himself with an order of anticipatory bail
when he appears for examination in response to the notice under
Sec.160 of the Cr.P.C.
3. The learned counsel for the petitioner submits that the
Circle Inspector of Police/the Investigating Officer has arrayed
many persons against whom the de facto complainant has no
grievance at all. It is an arbitrary, unbridled and colourable
exercise of the powers under the Code for the investigation given
to an Investigating Officer. In these circumstances,
appropriate directions may be issued, it is prayed.
4. I am not persuaded to agree that directions under
B.A.NO. 3731 OF 2007 -: 3 :-
Sec.438 of the Cr.P.C. can or ought to be issued in the facts and
circumstances of this case. But I am satisfied that appropriate
other directions can be issued in the interests of justice.
5. This petition is, in these circumstances, allowed in part.
It is directed that the petitioner shall appear before the 1st
respondent at 10 a.m. on 27/6/07. He shall be questioned by the
Investigating Officer. In case a decision is taken to arrest him
after arraying him as an accused, after such questioning, the
petitioner shall be produced before the learned Magistrate on
that day itself. Needless to say, the petitioner shall be at liberty
to apply for bail before the learned Magistrate and the learned
Magistrate will have to consider such application expeditiously.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge
B.A.NO. 3731 OF 2007 -: 4 :-
In the result, this petition is allowed. Following directions
are issued under Sec.438 of the Cr.P.C:
(i) The petitioner shall appear before the learned
Magistrate having jurisdiction at 11 a.m. on 26/6/07. He shall be
released on regular bail on his executing a bond for Rs.25,000/-
with two solvent sureties each for the like sum to the satisfaction
of the learned Magistrate.
(ii) The petitioner shall make himself available for
interrogation before the Investigating Officer between 10 a.m.
and 4 p.m. on 27/6/07 and 28/6/07 and thereafter on all Mondays
between 10 a.m. and 12 noon for a period of three months.
Thereafter, he shall so make himself available for interrogation
before the Investigating Officer as and when directed by the
Investigating Officer in writing to do so.
(iii) If the petitioner does not appear before the learned
Magistrate as directed in clause (i), directions issued above shall
thereafter stand revoked and the police shall be at liberty to
B.A.NO. 3731 OF 2007 -: 5 :-
arrest the petitioner and deal with him in accordance with law as
if those directions were not issued at all;
(iv) If the petitioner were arrested prior to his surrender
on 26/6/07 as directed in clause (i) above, he shall be released on
his executing a bond for Rs.25,000/- without any sureties
undertaking to appear before the learned Magistrate on 26/6/07.