High Court of KeralaBail Appl./2178/2015disposed of

Aby P.J v. The Sub Inspector Of Police

2015-05-08Honourable Mr. Justice P.Ubaid4 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE P.UBAID FRIDAY, THE 8TH DAY OF MAY 2015/18TH VAISAKHA, 1937 Bail Appl.No. 2178 of 2015 -------------------------------------- CRIME NO. 263/2015 OF RANNI POLICE STATION, PATHANAMTITTA .........

PETITIONER(S)/ACCUSED:

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1. ABY P.J., AGED 30 YEARS, S/O. JOSEPH VARGHESE, RUBBARIL HOUSE, PULLOOPRAM P.O., ANGADI VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT.

2. JACOB MATHEW@ THAMPI, AGED 48 YEARS, S/O K.U. MATHEW, KADKKETHU HOUSE, PULLOOPRAM P.O., ANGADI VILLAGE, RANNI TALUK, . PATHANAMTHITTA DISTRICT.

3. JOSEPH, AGED 40 YEARS, S/O CHACKO, PARAYIL VEEDU, KOLABHAGOM P.O., THADIYOOR, PATHANNAMTHITTA DISTRICT.

4. SKARIA MUTHAIYYA, AGED 40 YEARS, S/O MUTHAIYYA, CHARUVIL VEEDU, ADICHIPPUZHA P.O., KACHERI THAZHAM, PAZHAVANGADI, RANNI.

BY ADV. SRI.V.SETHUNATH RESPONDENT(S):

------------------------- 1.

THE SUB INSPECTOR OF POLICE, RANNI POLICE STATION, PATHANAMTHITTA DISTRICT - 689 645.

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.

BY SENIOR PUBLIC PROSECUTOR SMT.SAREENA GEORGE P. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08-05-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: msv/

P. UBAID, J.

---------------------- Bail Appl. No.2178 of 2015 -------------------------------------------- Dated this the 8th day of May 2015

O R D E R

The petitioners seek pre arrest bail on the apprehension of arrest in connection with Crime No.263 of 2015 of the Ranni Police station registered under Sec.379 of the Indian Penal Code and under Secs.20, 21 and 23 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (for short, 'the Sand Act').

2. The prosecution case is that the accused were found illicitly transporting river sand without any pass or authority. Though, crime is seen registered under Sec.379 IPC also, the allegations will practically come only under the Sand Act. This is only a case of illicit or unauthorized possession, removal or transportation of river sand. The petitioners seek pre arrest bail on the ground that Sec.379 IPC was mischievously incorporated by the Police in the FIR, with the object of bail being denied to the petitioners. No doubt, illicit or unauthorised removal, possession or transportation of

Bail Appl. No.2178 of 2015 2 river sand by itself will come only under Sec.20 of the Sand Act. But to constitute the offence of theft punishable under Sec.379 IPC, something more is required. These things will have to be considered by the learned Magistrate having jurisdiction. If the crime involves only an offence punishable under Sec.20 or 21 of the Sand Act, the petitioners can very well claim bail as of right before the learned Magistrate, because the offence is bailable. The offences under Sec.20 and 21 of the Sand Act are made cognizable under Sec.24 of the Sand Act. The offence under Sec.20 is punishable with imprisonment up to two years. The offences under the Sand Act are not seen made non bailable under the Act. No doubt, the offences are bailable.

If the allegations made by the police in the FIR will constitute only the offence under Sec.20 or 21 of the Sand Act, the accused will have to be granted bail as of right. Whether the case involves the essentials of Sec.379 IPC, will have to be examined by the learned Magistrate having jurisdiction. This Court is not inclined to go into these aspects or to exercise the discretionary powers under Sec.438 Cr.P.C.

Bail Appl. No.2178 of 2015 3 when the main offence alleged against the petitioners is essentially and practically a bailable one under the Sand Act. I find that the request for bail will have to be considered by the learned Magistrate having jurisdiction under Sec.437 Cr.P.C. Let the learned Magistrate examine the case records and see whether necessary elements and ingredients are there to constitute the offence of theft punishable under Sec.379 IPC, or whether the allegations come only under the Kerala Sand Act.

In the result, this bail application is disposed of with direction to the learned Magistrate having jurisdiction, that in case application for bail is filed under Sec.437 Cr.P.C. on surrender, or on arrest, the same shall be judiciously considered and decided as indicated above. Sd/- P. UBAID JUDGE / True Copy / NS P.A.To Judge