IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 5188 of 2008()
1. SHAJAHAN, AGED 28,
... Petitioner
2. JABBAR.M.C, AGED 28,
3. K.K. ISMAIL, AGED 27,
4. O.K. SASI, AGED 34,
5. DHANRAJ, AGED 33,
6. SAJI, AGED 22,
7. SHYJU, AGED 28,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.M.V.AMARESAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :30/10/2008
O R D E R
K. HEMA, J.
---------------------------------------------------
Bail Appl.No. 5188 of 2008
---------------------------------------------------
Dated this the 31st day of October, 2008.
ORDER
Petition for anticipatory bail.
The alleged offences are under Sections 143, 147,
148, 323, 324, 307 read with section 149 IPC. According to
prosecution, seven named persons and 12 others formed into an
unlawful assembly and assaulted de facto complainant with
intention to commit murder and he sustained fracture etc.
3. Learned counsel for petitioners submitted that
petitioners are absolutely innocent of the allegations made. As
per the intimation sent by the doctor to the police, which is
Annexure I, it is prepared at 9.45 p.m. and the incident is at 7
p.m. But, in the intimation, it is recorded that the assault was by
“unknown persons”. It is only in the F.I.R. which is registered at
11.15 p.m. on the same day that the name of 7 accused are
mentioned. They are implicated falsely on a second thought., it
is submitted. Even then, the name of the 6th petitioner (A5) is
[B.A.No.5188/08] 2
not in the FIR. There is no case that A5 used any weapon. In the
above circumstances, petitioners may be granted anticipatory
bail, it is submitted.
4. This petition is strongly opposed. Learned Public
Prosecutor submitted that petitioners 1 to 3, 6 and 7 are
implicated as accused in the crime. Petitioners 1 to 3 are A1 to A3
and petitioner no.6 is A5 and petitioner no.7 is A4 in the crime.
Petitioner no.4 is deleted from the array of accused, since it is
reveled in investigation that he is not involved. Petitioner no.5 is
only suspected and investigation is being conducted into his
involvement in the crime. It is submitted that in the F.I.R. itself
some of the names are mentioned and an investigation is
conducted into the involvement of all the accused, named and
unnamed. No accused is arrested so far, though the incident
occurred as early as on 22.7.2008, about three months back. It
is also submitted that serious injuries are sustained by de facto
complainant. He had fracture and amputation of a finger. It is
also submitted that though A1, A2 and A4 used sword stick, A3,
A5 and A7 used sticks.
5. Learned Public Prosecutor submitted that though in the
FIR no allegation is made that A5 (petitioner no.6) had used
[B.A.No.5188/08] 3
weapon, in the investigation, it is revealed that he has used a
stick. It is also submitted that though the name of petitioner no.4
was mentioned in the FIS, on investigation it was found that he
was not involved. Though the name of petitioner no.6 is not
mentioned in the FIS he is implicated as A5, since it is revealed
that he has beaten the de facto complainant using a stick.
Therefore, on the facts of this case, it is not a fit case to grant
anticipatory bail, it is submitted. Petitioners are required for
interrogation and if anticipatory bail is granted, it will adversely
affect the investigation, it is submitted.
6. On hearing both sides, taking into consideration the
nature of allegations made against accused who are involved in
the crime it is not a fit case to grant anticipatory bail to them. A1
to A4 and A5 & A7 have allegedly used weapons for the offence
and their interrogation is necessary for an effecting recovery of
weapon allegedly used. Though in the intimation it is recorded
that the accused are “unknown”, in the F.I.R. their names are
stated. It is needless to say that during investigation the persons
who are actually involved can be ascertained. An investigation is
being carried on regrading involvement of those who are named
in the FIR and also not named. Taking into consideration the
[B.A.No.5188/08] 4
nature of investigation required, nature of allegations made I am
least inclined to grant anticipatory bail to the accused who are
involved in this case.
7. Anticipatory bail cannot be granted to A4 also since his
name is deleted from the array of accused. Petitioner no.5 is
suspected to be involved in the offence and investigation is
continued against him also. Anticipatory bail cannot be granted
to him also. The incident occurred as early as on 22.7.2008 and
the investigation is at a standstill since, nobody is arrested so far
and therefore the following direction is issued:
1) The request for anticipatory bail by all the
petitioners are rejected.
2) Petitioners 1 to 3, 6 and 7 shall surrender
before the investigating officer within 7 days
from today and co-operate with the
investigation.
3) Whether they surrender or not, the police is at
liberty to arrest them.
With these directions, this petition is dismissed.
K. HEMA, JUDGE.
Krs.