IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 6858 of 2009()
1. M.V.VALSALAN, AGED 59 YEARS,
... Petitioner
2. M.V.PRATEESH KUMAR, AGED 30 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DEPUTY SUPERINTENDENT OF POLICE,
For Petitioner :SRI.K.C.PETER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :26/03/2010
O R D E R
K.T.SANKARAN, J.
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B.A. NOS.6858 & 6872 OF 2009
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Dated this the 26th day of March, 2010
O R D E R
These are applications for anticipatory bail under Section 438
of the Code of Criminal Procedure. The first petitioner in
B.A.No.6858 of 2009 is accused No.8 in Crime No.79 of 2004 of
Varapuzha Police Station. The petitioner in B.A.No.6872 of 2009 is
accused No.9 in the same crime. It is submitted by the learned
Public Prosecutor that the second petitioner in B.A.No.6858 of 2009,
namely, M.V.Prateesh Kumar is not an accused in the crime.
2. The offences alleged against the petitioners are under
Sections 457, 461, 380 and 411 read with Section 34 of the Indian
Penal Code.
3. The prosecution case is that in 2004, Thaliath Matha
Jewellery at Varapuzha was broke open and accused Nos.1 to 6
committed theft of 3.750 Kgs. of gold ornaments, one kilogram of
silver and Rs.50,000/-. The allegation against accused Nos.8 and 9
is that they received the stolen articles from the other accused.
B.A. NOS.6858 & 6872 OF 2009
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4. The petitioners are running jewellery shops in
Thaliparamba, Kannur. It is submitted by the learned counsel for the
petitioners that at no point of time earlier, there was any allegation
that the petitioners are involved in receiving stolen properties. It is
submitted that simply because some of the accused have stated that
they had sold the stolen articles in the shops belonging to the
petitioners, the petitioners cannot be harassed by the police contrary
to the directions and circulars issued by the Government from time to
time. It is also pointed out by the learned counsel for the petitioners
that on earlier occasions also, they were directed by the police to
handover gold ingots. It is submitted that under pressure, the
petitioners were compelled to part with gold ingots. It is submitted
that the petitioners have filed applications before the Court for return
of the gold ingots which they had given, stating that they had not
received any stolen property from any person.
5. When the Bail Applications came up for hearing on
23.2.2010, an order was passed directing the petitioners to appear
before the investigating officer on 4th, 5th, 8th and 9th March, 2010.
B.A. NOS.6858 & 6872 OF 2009
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The order passed on 23.2.2010 in B.A.No.6858 of 2009 is extracted
below:
“After having heard the learned counsel for the
petitioners and the learned Public Prosecutor, I am of
the view that before disposing of the Bail Application, an
opportunity should be given to the petitioners to appear
before the investigating officer. Accordingly, there will
be a direction to the petitioners to appear before the
investigating officer at 9 AM on 4th, 5th, 8th and 9th March,2010. The petitioners shall remain before the
investigating officer till 1 P.M on all these days.
It is submitted by the learned Public Prosecutor
that the petitioners will not be arrested until further
orders in connection with Crime No.79 of 2004 of
Varappuzha Police Station, Ernakulam District.
The petitioners undertake to produce all the
relevant records in respect of the conduct of the
Jewellery as directed to be produced by the
investigating officer.
It is made clear that the direction to appear shall
not be taken as a ground for claiming anticipatory bail as
of right. The question whether the petitioners are
entitled to get anticipatory bail will be considered after
B.A. NOS.6858 & 6872 OF 2009
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the petitioners appear before the investigating officer as
aforesaid.
Post on 15.3.2010.
The petitioners shall produce copy of this order
before the investigating officer.”
6. The petitioners were also directed to produce the relevant
records in respect of the conduct of the Jewellery by them before the
investigating officer. It is submitted by the learned counsel for the
petitioners that the petitioners have complied with the directions.
The learned Director General of Prosecution submitted that the
petitioner in B.A.No.6872 of 2009 appeared on all the dates directed
by the Court, while the first petitioner in B.A.No.6858 of 2009 had
substantially complied with the direction. The learned counsel for
the petitioners submitted that the first petitioner in B.A.No.6858 of
2009 is a heart patient and he had undergone a bypass surgery.
7. The learned counsel for the petitioners submitted that the
petitioners are prepared to co-operate with the investigating officer
and they are prepared to appear before the investigating officer at
B.A. NOS.6858 & 6872 OF 2009
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any time when they are directed to do so. The petitioners are also
prepared to co-operate with the investigation in any manner as
lawfully suggested by the investigating officer. These submissions
are recorded.
8. Taking into account the peculiar facts and circumstances of
the case and the fact that theft was committed in 2004 and all the
other attendant circumstances, I am of the view that anticipatory bail
can be granted to the first petitioner in B.A.No.6858 of 2009 and the
petitioner in B.A.No.6872 of 2009.
9. There will be a direction that in the event of the arrest of the
first petitioner in B.A.No.6858 of 2009 and the petitioner in
B.A.No.6872 of 2009, the officer in charge of the police station shall
release them on bail on their executing bond for Rs.25,000/- each
with two solvent sureties for the like amount to the satisfaction of the
officer concerned, subject to the following conditions:
a) The first petitioner in B.A.No.6858 of 2009 and the
petitioner in B.A.No.6872 of 2009 shall report before the
investigating officer between 9 A.M. and 11 A.M. on
alternate Mondays, till the final report is filed or until
further orders;
B.A. NOS.6858 & 6872 OF 2009
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b) The first petitioner in B.A.No.6858 of 2009 and the
petitioner in B.A.No.6872 of 2009 shall appear before
the investigating officer for interrogation as and when
required;
c) The first petitioner in B.A.No.6858 of 2009 and the
petitioner in B.A.No.6872 of 2009 shall not try to
influence the prosecution witnesses or tamper with the
evidence;
d) The first petitioner in B.A.No.6858 of 2009 and the
petitioner in B.A.No.6872 of 2009 shall not commit any
offence or indulge in any prejudicial activity while on
bail;
e) In case of breach of any of the conditions mentioned
above, the bail shall be liable to be cancelled.
The Bail Applications are allowed to the extent indicated
above.
(K.T.SANKARAN)
Judge
ahz/