IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 3973 of 2007()
1. MUTHU @ JAYAPRAKASH,
... Petitioner
Vs
1. THE STATE OF KERALA REPRESENTING
... Respondent
For Petitioner :SRI.C.A.CHACKO
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :02/07/2007
O R D E R
R.BASANT, J.
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B.A.No.3973 of 2007
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Dated this the 2nd day of July 2007
O R D E R
Application for anticipatory bail. The petitioner is the
second accused. Altogether there are four accused persons.
F.I.R is registered inter alia under Sections 308 and 324 read
with 34 I.P.C. The defacto complainant was the passenger in an
autorickshaw. There was an exchange of words between a
motor cycle rider and the autorickshaw driver. The defacto
complainant had also allegedly participated in that discussion
and quarrel. Actuated by oblique motives, the accused persons,
four in number, are alleged to have attacked the defacto
complainant thereafter with dangerous weapons. One stabbed
the defacto complainant. Injury was suffered by the defacto
complainant. Emergency surgery had been done. The
investigation is in progress. The petitioner apprehends
imminent arrest.
2. The learned counsel for the petitioner submits that
the allegations against the petitioner are baseless and are raised
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with oblique motives. No specific overt act is alleged against the
petitioners. At worst, it can only be assumed that there was an
unexpected quarrel and in the course of that quarrel, an incident
had taken place. At any rate, it is not necessary to insist on
arrest and incarceration of the petitioner for any length of time.
The allegation under Section 308 I.P.C has been raised with
vexatious intent only to ensure that the petitioner remains in
custody for as long a period as possible.
3. The learned Public Prosecutor opposes the
application. The learned Public Prosecutor submits that the
allegations are serious. For no provocation, the defacto
complainant was attacked. Injury suffered is serious. Available
indications do suggest that the injury suffered is serious and life
threatening. At any rate, there are no circumstances justifying
the invocation of the jurisdiction under Section 438 Cr.P.C,
submits the learned Public Prosecutor. I find merit in the
opposition by the learned Public Prosecutor. I do not find any
circumstances which would justify the invocation of the
discretion under Section 438 Cr.P.C. This is an eminently fit
case where the petitioner must follow the normal and ordinary
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procedure of surrendering before the investigating officer or the
learned Magistrate having jurisdiction. He must then seek bail
in the ordinary course.
4. I do not find any circumstances which would justify
invocation of the extraordinary equitable discretion under
Section 438 Cr.P.C. This is a fit case where the petitioner must
appear before the learned Magistrate or the investigating officer
and seek bail in the regular and ordinary course.
3. In the result, this petition is dismissed. Needless to
say, if the petitioner surrenders before the investigating officer
or the learned Magistrate and applies for bail, after giving
sufficient prior notice to the Prosecutor in charge of the case,
the learned Magistrate must proceed to pass appropriate orders
on merits, in accordance with law and expeditiously.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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B.A.No.3973/07 5
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007