Judgment · High Court · 2008

K.HEMA, J.------------------------------B.A. No.5718 OF 2008------------------------------Dated this the 15th day of October, 2008O R D E RThis petition is for anticipatory bail. 2. The alleged offences are under Clause 5A of the KeralaRationing Order, 1966 read with Sections 3 and 7 of the EssentialCommodities Act, 1955. According to the prosecution, rationarticles were found being unloaded in 1st accused's godown andthe articles were intended to be supplied to the ration shops ofaccused Nos.3 and 4. The 2nd accused is the driver of the vehiclefrom which the articles were unloaded. The incident occurred on06.03.2008. The petitioner is the 4th accused in the crime. 3. Petitioner filed an application for anticipatory bail beforethe Sessions court and it was dismissed as per order dated28.05.2008. The investigation could not be proceeded with, sincethe accused were not available for arrest and interrogation. The1st accused filed an anticipatory bail application as B.A.No.2538of 2008 before this Court and as per order dated 06.05.2008,this Court found that the incident occurred on 06.03.2008 and B.A.5718 of 20082almost two months have elapsed therefrom and the police wasunable to effect arrest of the 1st accused and no considerableprogress in the investigation could be made without delay, unlessthe 1st accused is made available for questioning. On suchobservations, anticipatory bail was granted to 1st accused by thisCourt directing him to surrender before the Magistrate court andthereafter on release of the 1st accused to appear before theInvestigating Officer. 4. The 3rd accused filed an application for anticipatory bailbefore this Court as B.A.No.3520 of 2008. This Court as per orderdated 08.07.2008 held, “anticipatory bail cannot be granted in a case ofthis nature. But at the same time, I am inclinedto permit the petitioner to surrender before theInvestigating Officer for the purpose ofinterrogation and then to have his application forbail considered by the Magistrate havingjurisdiction.” The 3rd accused was directed to surrender before theInvestigating Officer for interrogation and recovery of B.A.5718 of 20083incriminating material, if any. He was also directed to be releasedon bail by the Magistrate.5. Learned counsel for the petitioner submitted that in theabove circumstances, the petitioner may also be grantedanticipatory bail. It is pointed out that accused Nos.3 and 4 standon the same footing. By order dated 08.07.2008, this Courtdirected the learned Magistrate to release the accused on bail onappropriate conditions. Hence the same benefit may be extendedto the petitioner, it is submitted. On hearing both sides and on going through the differentorders, I find that anticipatory bail application filed by thepetitioner was dismissed on tenable grounds by the learnedSessions Judge. This Court has also observed as per order dated08.07.2008 in B.A.No.3520 of 2008 that anticipatory bail cannotbe granted in a case of this nature. It is also observed by thisCourt as per Annexure B order that the police was unable toeffect arrest of the petitioner and no considerable progress isthere in the investigation because of non availability of theaccused for questioning. The incident occurred as early as on 06.03.2008. The B.A.5718 of 20084petitioner is not so far arrested in spite of lapse of more thanseven months. It is clear that the petitioner has been successfullyevading arrest by the police and filing of the petition before thisCourt has also to some extent contributed to the delay in arrestand interrogation. In such circumstances, I do not think it properto grant anticipatory bail to the petitioner. However this Court asper Annexure C order has directed the Magistrate court to releasethe 3rd accused on bail on appropriate conditions, though it washeld that anticipatory bail cannot be granted in a case of thisnature. In this context, I make it clear that considerations forgranting of anticipatory bail are different from considerations ofgranting bail under Section 437 or 439 Cr.P.C. and hence, it isleft to the learned Magistrate to decide whether the petitioner isto be released on bail or not. The incident is on 06.03.2008 andthe anticipatory bail application filed by petitioner before learnedSessions Judge was dismissed as early as on 28.05.2008. stillpetitioner is not made available for arrest so far. B.A.5718 of 20085However, I direct that petitioner shall surrenderbefore the Investigating Officer or before thelearned Magistrate within seven days from todayand make himself available for interrogation bythe police and co-operate with the investigation. With these directions and observations, the petition isdismissed. K.HEMA, JUDGE pac