IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 4803 of 2008()
1. VINOD KUMAR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.ARUN.B.VARGHESE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :12/08/2008
O R D E R
K.HEMA, J.
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Bail Application No.4803 of 2008
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Dated this the 12th day of August, 2008
O R D E R
This petition is for anticipatory bail.
2. The alleged offence is under Section 379 IPC.
According to the prosecution, on 9.7.2008, at about 12.30 p.m.,
on a working day, the defacto complainant seized petitioner’s
mini lorry on the allegation that sand was carried in the lorry, in
violation to the provisions of the Kerala Protection of River Bank
and Regulation of Removal of Sand Act 2001 (the Act, for short).
The vehicle was kept in the premises of the Taluk office. It is
further alleged that at about 1.30 p.m., on the same day,
petitioner who is the registered owner of the vehicle went to
Taluk Office premises and made false representations to the two
peons of the office that the Tahsildar had allowed the petitioner
to take the battery of the vehicle, and the petitioner fraudulently
took away the battery of his own vehicle and committed offence
under Section 379 IPC.
3. Learned counsel for petitioner submitted that the
petitioner is absolutely innocent of the allegations made. This is
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an offshoot of a rivalry between the petitioner and the Tahsildar,
who is the defacto complainant herein, in respect of seizure of
another vehicle. It is submitted that the petitioner’s mother’s
lorry was seized on allegation of violation of the same Act and it
was not released to the owner. Therefore, petitioner moved this
Court in writ petition no.19991/07 for getting the vehicle
released. As per the judgment dated 9.7.2007, this Court
directed the District Collector to release the vehicle on condition
that the owner of the vehicle deposits Rs.25,000/-.
4. The petitioner along with his mother went to the
District Collector’s Office while they were informed that they
have to approach the Tahsildar, Mallappally for release of the
vehicle. When they approached the Tahsildar, she was not ready
to accept Rs.25,000/- and release the vehicle as ordered by this
Court. Therefore, petitioner approached this Court again and as
per Annexure AII contempt case (c) no.1575/07, this Court
passed an order on 3.12.2007 as follows:
“The learned counsel for the petitioner submits that the
Tahsildar is taking a recalcitrant attitude and is refusing
to receive the amount of Rs.25,000/- when offered. The
learned Government Pleader dispute this. The learned
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counsel for the petitioner is ready with Rs.25,000/- in
cash. The Tahsildar is also present. Learned counsel for
the petitioner hand over the cash to the learned
Government Pleader. The respondents shall release the
vehicle forthwith.”
Thereafter, the Tahsildar was forced to come to this Court
and collect the money from the Government Pleader and release
the vehicle to the petitioner, it is submitted. This had offended
the Tahsildar and hence, the petitioner’s lorry, which was having
a permit was seized by the Tahsildar. Annexure AI is the permit
in respect of the said lorry. The lorry was taken to the premises
of the Taluk Office and the Tahsildar came to know that there is
a valid permit. To evade any action being taken against her for
illegal seizure of the vehicle, this false complaint is lodged
against the petitioner, it is submitted.
5. Learned counsel for petitioner submitted that it is
difficult to believe that in the broad day light, at about 1.30 p.m.,
during lunch time, the petitioner who is the RC owner would
dare to enter and remove the battery, which would require
reasonable time. If at all the petitioner had acted in the manner
alleged, it is likely that any one of the officials will see this and it
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will be reported to the authorities concerned and the removal of
the battery can be immediately prevented. But, the present
story is a concocted story which is fabricated only to create
problems to petitioner, it is submitted. It is also pointed out that
the peons who allegedly allowed the petitioner to remove the
battery even now continue in the same office of the Tahsildar.
6. Learned counsel for petitioner also pointed out that
the alleged incident happened on 9.7.2008 and the matter was
reported to the police on the same day at 1.30 p.m. But, it is
conceded that the FIR was registered only two days thereafter
the alleged lodging of the complaint. Learned counsel for
petitioner submitted that it is difficult to believe again when a
complaint of this nature is made to the police by an authority
like Tahsildar, there will be such inordinate delay in registration
of the FIR. According to him, all these facts point out that a
belated complaint is raised against the petitioner, which is
absolutely false, it is submitted.
7. In the light of the very serious allegations made, this
court summoned the Tahsildar to this Court. She appeared
before this Court today and learned public prosecutor submitted
that the allegations made against the Tahsildar are not fully
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correct. The earlier seizure of the lorry of the petitioner’s
mother was not effected by the Tahsildar. It was a seizure by
the Sub Inspector. The Tahsildar had nothing to do with it and
she came to know about the proceedings only when the
Tahsildar was informed by the Collector to go to the High Court
and receive the money as directed by this Court. She,
accordingly, came to the GPs’ office and received the money and
took steps to release the vehicle. She came to this Court only as
per the directions of the District Collector. She was not aware
of any of the proceedings before this court, it is submitted,
especially since she was not a party to the proceedings.
8. On hearing both sides, I am satisfied that this is more
than a fit case to grant anticipatory bail to the petitioner. It is
strange that in the premises of a Tahsildar’s office, an incident
of this nature had happened. Tahsildar is the custodian of the
vehicle and once a seizure is made, it is her responsibility and
concern to keep the vehicle in safe custody. It is relevant to note
that though the petitioner has raised a complaint that the
Tahsildar has refused to release the vehicle as directed by the
High Court, Tahsildar has kept mum against the petitioner for
making such false allegations before this Court. The crime was
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registered only after two days and the peons at whose
connivance the battery was removed still continue in the same
office. It is better, I maintain judicial restraint and I do not make
any further comments regarding the responsibility of the
Tahsildar.
9. Anyway, I am persuaded by the facts and
circumstances to grant anticipatory bail and the following order
is passed:
The petitioner is directed to appear before the
Investigating Officer within seven days from today
and he is directed to release the petitioner on bail in
the event of his arrest, if any, on his executing bond
for Rs.25,000/- with two solvent sureties each for like
sum to the satisfaction of the Magistrate court
concerned on condition that he will co-operate with
the investigation and make himself available for
interrogation.
The petition is allowed.
K.HEMA, JUDGE
csl