IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7388 of 2008()
1. ALEX.T.GEORGE @ ALEX THANKACHAN
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PUBLIC
... Respondent
For Petitioner :SRI.T.P.PRADEEP
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :05/12/2008
O R D E R
K.HEMA, J.
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B.A.No.7388 of 2008
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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
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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
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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,
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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
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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.