IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 7257 of 2009()
1. RAFEEQUE, AGED 38,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.A.MOHAMMED
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :15/12/2009
O R D E R
K.T.SANKARAN, J.
---------------------------------------------
B.A.No.7257 of 2009
---------------------------------------------
Dated this the 15th day of December, 2009
ORDER
The petitioner had filed Bail Application No.6007 of 2009
under Section 438 of the Code of Criminal Procedure for
anticipatory bail. That application was dismissed by the order
dated 27th October, 2009. The present Bail Application, namely,
Bail Application No.7257 of 2009 is filed by the petitioner for the
same relief.
2. For the sake of convenience, the order dated 27th
October, 2009 in Bail Application No.6007 of 2009 is extracted
below:
“This is an application for anticipatory bail
under Section 438 of the Code of Criminal
Procedure. The petitioner is accused No.1 in
Crime No.172 of 2009 of Melukavu Police
Station, Kottayam District.
2. The offences alleged against the
petitioner are under Sections 353 and 341 read
with Section 34 of the Indian Penal Code.
3. On 4.7.2009 at 4.30 A.M., the
Intelligence Officer (IB), Intelligence Squad of
BA No.7257/2009 2
the Commercial Taxes Department, Thodupuzha
and the inspectors were conducting vehicle
checking at Muttom. A Tata mini lorry bearing
registration No.KL9Q 8040 was directed to be
stopped. It is stated that the lorry was having
full load of live chicken. The driver of the
vehicle did not stop. He drove the vehicle in
high speed towards Melukavu direction. The
officers of the Commercial Taxes informed the
Melukavu Police Station over phone. Some
police men tried to intercept the mini lorry.
But, the mini lorry was not stopped. The road
was a Ghat road and one side of the road, it was
deep valley. Another vehicle, namely, a
Mahindra Scorpio jeep bearing registration
No.KL07AX 837 overtook the department
vehicle. Thereafter, the Scorpio jeep was driven
in a zigzag manner so as to prevent the
department jeep from overtaking the mini lorry.
The mini lorry could thus escape from the
inspection by the officers of the Commercial
Taxes Department.
4. The allegation is that the petitioner
was driving the mini lorry. On 7.7.2009, the
Intelligence Officer (IB), Commercial Taxes,
Idukki at Thodupuzha submitted a detailed
petition to the Station House Officer, Melukavu
BA No.7257/2009 3
Police Station. The F.I.R. Was registered only
on 13.9.2009.
When a serious allegation is raised
involving offence under Section 353 by the
Commercial Taxes Officer and the grievance is
put in writing, normally there should not be any
delay to register the F.I.R. In the present case,
even before filing the petition, when driver of
the mini lorry was trying to escape, information
was given to the police. The police personnel of
Melukavu Police Station tried to intercept the
vehicle. That means, the police officers were
also aware of the incident. Even without a
petition from the officers of the Commercial
Taxes Department, the police could register a
crime. Why such delay was occasioned is a
matter to be explained by the Sub Inspector of
Police, Melukavu. A report shall be filed by the
Sub Inspector of Police, Melukavu Police
Station within a period of two weeks.
From the facts narrated above, it is clear
that the petitioner is not entitled to the
discretionary remedy under Section 438 of the
Code of Criminal Procedure. The prosecution
case is that the petitioner was driving the lorry.
The discretionary relief under Section 438 of
Crl.P.C., if granted in favour of the petitioner, it
BA No.7257/2009 4
would adversely affect the proper investigation
of the case.
For the aforesaid reasons, the Bail
Application is dismissed. However, the Bail
Application shall be posted after two weeks for
getting the report from the Sub Inspector of
Police, Melukavu Police Station.”
There are no compelling circumstances or change of
circumstances warranting the consideration of the matter afresh.
It is not proper to entertain a second application for bail in the
facts and circumstances of the case.
The Bail Application is accordingly dismissed.
K.T.SANKARAN,
JUDGE
csl