Kerala High Court
Shaji' vs State Of Kerala on 4 March, 2010
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 1040 of 2010()
1. SHAJI'
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.D.VIJAYAKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :04/03/2010
O R D E R
K.T.SANKARAN, J.
------------------------------------------------------
B.A. NO. 1040 OF 2010
------------------------------------------------------
Dated this the 4th day of March, 2010
O R D E R
This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.2 in Crime No.525 of 2009 of Poonthura Police Station, Thiruvananthapuram.
2. The petitioner had filed B.A.No.166 of 2010 for the same relief as prayed for in the present Bail Application. B.A.No.166 of 2010 was dismissed by this Court as per the order dated 25th January, 2010. For the sake of convenience, the order dated 25.1.2010 in B.A.No.166 of 2010 is extracted below:
"This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is the second accused in Crime No.525/2009 of Poonthura Police Station, Thiruvananthapuram.
2. The offences alleged against the petitioner are under Sections 51(1)(a), 51(1)(b), 52A and 68 A of the Copy Right Act and Section 420 of the Indian Penal Code.
B.A. NO. 1040 OF 2010 :: 2 ::
3. The gist of the prosecution case is the following: On 20/11/2009, the Sub Inspector of Police, Poonthura Police Station was conducting search of vehicles. At about 12 noon, KL 01 N 6720 Ambassador car reached the spot. The car was inspected. On inspection, several packets were found inside the car, all of which were addressed to several addresses of Bima Pally. At that time, another Wagon R car with number plate showing registration number as KL 19A 348 on the front side and registration number KL 19 A 3488 on the rear side, came to the spot. On seeing the police, the person who was inside the car ran away. The person who was found in the ambassador car stated to the police that the person who ran away was his brother. On a search of the car, several incriminating articles were found. It is alleged that inside the car, C.D. writers and several pirate CDs and DVDs were found. The crime was accordingly registered.
4. The allegations levelled against the petitioner are grave in nature. A detailed investigation is required with the assistance of the personnel who know the technical aspects of the offence. Custodial interrogation of the petitioner is required in the case for the smooth and proper investigation of the case. If the petitioner is granted bail, it would adversely affect the proper B.A. NO. 1040 OF 2010 :: 3 ::
investigation of the case. I do not think that this is a fit case where the discretionary relief under Section 438 of the Code of Criminal Procedure should be granted in favour of the petitioner.
For the aforesaid reasons, the Bail Application is dismissed."
3. The learned counsel for the petitioner submitted that the offences under the Copy Right Act alleged against the petitioner provided a punishment up to three years and, therefore, those offences are bailable. Part II of Schedule I of the Code of Criminal Procedure classifies the offence into three categories. The second category is "if punishable with imprisonment for three years and upwards but not more than seven years". Such offences are cognizable and non-bailable. In Boban v. Union of India (2005(2) KLT 831), I had occasion to decide this question, wherein it was held that the expression "three years and upwards" would include an offence punishable for a term up to three years and such offences are non-bailable. There is no change of circumstance or any other ground warranting consideration of a second application for anticipatory bail.
B.A. NO. 1040 OF 2010 :: 4 ::
4. The learned counsel for the petitioner submitted that the petitioner is prepared to surrender before Court. This order does not preclude him from doing so.
For the aforesaid reasons, the Bail Application is dismissed.
(K.T.SANKARAN) Judge ahz/