Abdul Nasar vs State Of Kerala

R. Narayana Pisharadi, J

This is an application for bail filed under Section 439 Cr.P.C.

The petitioners are the first and the second accused in the case registered as Crime No. 452/2021 of the Kottakkal Police Station.

The third accused in the case was the Assistant Sub Inspector (Grade) of the Kottakkal Police Station and the fourth accused was the Senior Civil Police Officer (Grade) of the same police station.

The petitioners were the accused in the case registered as Crime No.111/2021 of the Kottakkal Police Station. The aforesaid case was registered against them for transporting Hans. Large quantity of Hans had been recovered form their possession.

The present case was originally registered on 15.09.2021 under Section 379 read with 34 of the I.P.C. Subsequently, the investigating officer filed a report in the competent court to delete Section 379 I.P.C from the F.I.R and to  incorporate Sections 7(a), 8 and 13(1)(a) of the Prevention of Corruption Act, 1988 and also Sections 409 and 120B of the Indian Penal Code in the F.I.R.

On 21.04.2021, at about 12:15 hours, the Junior Sub Inspector of Kottakkal Police Station seized the van bearing registration number KL-28/A 2760 in which large quantity of Hans was transported. The first and the second accused who transported the Hans were arrested. The vehicle and the packets of Hans were produced in the Magistrate's Court concerned. The learned Magistrate directed that the van and the Hans shall be kept in the safe custody of the Station House Officer of the police station. Accordingly, the van, including the packets of Hans in it, was parked in the compound of the Kottakkal Police Station. As per the order dated 07.07.2021, the learned Magistrate directed to release the vehicle to the registered owner of the vehicle on interim custody. The vehicle was actually released from the police station on execution of bond by the person concerned on 23.07.2021.

On 15.09.2021, at about 13:00 hours, the Sub Inspector of Kottakkal Police Station received reliable information over his mobile phone that the first and the second accused in the case, with the connivance of some police officials, had committed theft of some Hans packets from the van which was parked in the compound of the police station. The Sub Inspector verified the property and it was found that 12670 packets of Hans were missing. Accordingly, the Sub Inspector registered Crime No.452/2021 of the Kottakkal Police Station under Section 379 read with 34 I.P.C against unknown persons.

During the investigation of the case (Crime No.452/2021) it was revealed that the first and the second accused had committed theft of the Hans packets from the van which was parked in the compound of the police station with the assistance of the third and the fourth accused, who were police officials. It was revealed during the investigation that the theft was committed between 22:00 and 24:00 hours on 22.07.2021.

The first petitioner was arrested on 17.09.2021 and the second petitioner was arrested on 22.09.2021.

During the investigation of the case (Crime No.452/2021 of the Kottakkal Police Station) it was further revealed that, with the assistance of the fifth accused in the case, the first and the second accused had contacted the third and the fourth accused and that the third and the fourth accused had demanded bribe for sabotaging the case regarding transporting of Hans. The investigation also revealed that the first and the second accused in the case gave and the third accused obtained an amount of Rs.1,20,000/- as bribe through the fifth accused for removing the packets of Hans from the van.

Since the investigation revealed that offences under the Prevention of Corruption Act have been committed, the investigating officer filed report to his superior officer for entrusting the investigation of the case to the Vigilance and Anti-Corruption Bureau (VACB).

Heard the learned counsel for the petitioners and the learned Public Prosecutor.

The petitioners, who are the first and the second accused in the case, are in jail for more than two months.

During the investigation of the case, it has been found out that the theft of Hans was committed from the van which was parked in the compound of the Kottakkal Police Station between 22:00 and 24:00 hours on 22.07.2021. The third accused was in G.D charge of the police station at that time.

During the investigation, materials have been collected which would show that it was with the connivance of the third and the fourth accused, who are police officials of the Kottakkal Police Station, that the first and the second accused committed theft of the Hans packets from the van which was parked in the compound of the police station. It has been further revealed that the third accused had received an amount of Rs.1,20,000/- from the first and the second accused for assisting them to remove the Hans packets from the van.

At the time of hearing the present bail application, in answer to a query made by this Court, the learned Public Prosecutor submitted that the investigation of the case has not been so far taken over by the VACB. In answer to a query made by this Court as to what prevents the VACB from taking over the investigation of the case, learned Public Prosecutor submitted that necessary orders from the Director General of Police have to be obtained in that regard.

In this connection, it is to be noted that the request for handing over the investigation of the case by the VACB had been made by the investigating officer long ago but no effective steps have been so far taken in that regard. Practically, the investigation of the case has come to a standstill. The petitioners have been in jail for more than two months. Further detention of the petitioners in jail is not required.

It is not known whether the records of the case have been transferred from the Magistrate's Court concerned to the Special Court concerned. Therefore, I find that it is proper to direct that the procedural formalities regarding the execution of the bail bond in respect of bail granted to the petitioners shall be done in the Magistrate's Court or the Special Court concerned, where the records are now kept.

Consequently, the application is allowed. The petitioners, the first and the second accused in the case, shall be released on bail on the following conditions:

(i) The petitioners shall execute a bond for Rs.50,000/-(Rupees fifty thousand only) each with two solvent sureties each for the like amount to the satisfaction of the Judicial First Class Magistrate or the Special Judge concerned.

(ii) The petitioners shall appear before the investigating officer as and when required and they shall co-operate with the investigation of the case.

(iii) The petitioners shall not, in any manner, intimidate or influence the prosecution witnesses or tamper with the evidence in the case.

(iv) The petitioners shall not leave the State of Kerala without the previous permission of the jurisdictional court concerned.

(v) If the petitioners violate any of the conditions of bail, the jurisdictional court concerned is at liberty to cancel the bail in accordance with law.