IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 6788 of 2007()
1. SUNIL KUMAR, AGED 26 YEARS,
... Petitioner
2. ANEESH, AGED 24 YEARS, S/O.RAVI,
3. SIJO, AGED 26 YEARS, S/O.GEORGE,
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SMT.REKHA C.NAIR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :28/11/2007
O R D E R
R. BASANT, J.
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B.A.No. 6788 of 2007
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Dated this the 28th day of November, 2007
O R D E R
Application for anticipatory bail. The petitioners are
accused 1 to 3. Altogether there are three accused persons now.
They face allegations in a crime registered under Section 326
I.P.C. The defacto complainant/victim is an employee of a bar
hotel. The father of one of the accused, one Sadanandan by
name, had gone to the bar at 12 noon on that day. He had
consumed liquor. There was some quarrel between the
employees of the bar and the said Sadanandan regarding the bill
that was issued. The said Sadanandan was allegedly pushed out
of the bar. On that night, it is alleged that, three persons came
on a motor cycle and attacked the defacto complainant, an
employee of the bar, who was returning from the bar after taking
his food at some other place. He was attacked with swords. He
suffered a fracture of the lower limb bone. Crime has been
registered. In the F.I. statement it is stated that Sadanandan and
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two others had allegedly committed the offence. But in the course of
investigation it was revealed that not the said Sadanandan, but the
petitioner, the son of Sadanandan, and two of his friends (A1 to A3)
had attacked the victim. Investigation is in progress. The petitioners
apprehend imminent arrest.
2. The learned counsel for the petitioners submits that the
petitioners are innocent. The learned counsel relies on the crucial
incongruent statement about the assailant – as to whether it is
Sadanandan, the father of the first petitioner, or the first petitioner.
He further contends that there is a counter case also. But on closer
scrutiny it is found that the counter case is not the counter case of the
present case. That is registered in respect of the incident in which
Sadanandan was allegedly attacked at the bar earlier in the noon. The
learned counsel for the petitioners submits that, at any rate, the
petitioners do not deserve to suffer the trauma of arrest and
incarceration. They may be granted anticipatory bail subject to
appropriate conditions, prays the learned counsel.
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3. The learned Prosecutor opposes the application. He submits
that the earlier incident clearly shows that the motive suggested by the
defacto complainant is absolutely correct. The nature of the injury
suffered as also the nature of the incident must be kept in mind. On
account of animosity, the three accused persons, evidently as per the
prior collusion, had come to the scene of occurrence in a motor cycle.
In any view of the matter, the petitioners do not deserve the invocation
of the extra ordinary equitable discretion under Section 438 Cr.P.C.
They may be directed to surrender before the Investigating Officer or
the learned Magistrate and then seek regular bail in the ordinary
course, submits the learned Prosecutor.
4. Having considered all the relevant inputs, I find merit in the
opposition by the learned Prosecutor. It is unnecessary to embark on
a detailed discussion on merits about the acceptability of the
allegations raised or the credibility of the data collected. Suffice it to
say that, I do not find any features in this case, which would justify
the invocation of the extra ordinary equitable discretion under Section
438 Cr.P.C. This I am satisfied is a fit case where the petitioners must
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resort to the ordinary and normal procedure of appearing before the
Investigator or the learned Magistrate having jurisdiction and then seek
regular bail in the ordinary course.
5. This application is accordingly dismissed. Needless to say,
if the petitioners appear before the Investigating Officer or the learned
Magistrate having jurisdiction and apply for bail after giving
sufficient prior notice to the Prosecutor in charge of the case, the
learned Magistrate must proceed to pass orders on merits, in
accordance with law and expeditiously.
(R. BASANT)
Judge
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