IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 2163 of 2008()
1. JAMSHIDH C., S/O.AHAMMEDKOYA, AGED 32 YR
... Petitioner
Vs
1. STATE OF KERALA THROUGH THE
... Respondent
For Petitioner :SRI.SUNNY MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :08/04/2008
O R D E R
R. BASANT, J.
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B.A.No. 2163 of 2008
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Dated this the 8th day of April, 2008
O R D E R
Application for anticipatory bail. The petitioner faces
allegations in a crime registered alleging offences punishable,
inter alia, under Sections 452 and 308 I.P.C. Altogether there are
three accused persons. Accused 1 and 2 were arrested and they
have already been granted regular bail as per order dt. 4.4.2008
in B.A. 2158 of 2008.
2. The crux of the allegations is that the miscreants
trespassed into the house of the defacto complainant and
indulged in acts of violence against the defacto complainant and
her sons. No serious injury has been suffered by any of the
alleged victims admittedly. It is in these circumstances that the
co-accused were granted regular bail as per the order referred
above.
3. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. False allegations are being
B.A.No. 2163 of 2008
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raised against him. The inclusion of the allegation under Section 308
I.P.C. must expose to this court the want of bonafides on the part of the
defacto complainant as also the police in the matter of investigation.
Even if the entire allegations were accepted, there is not a semblance of
data to attract culpability under Section 308 I.P.C. The said section has
been included with malafide intention to ensure that the accused
persons were in custody for as long a period as possible. The learned
counsel in these circumstances submits that at any rate allegation under
Section 308 I.P.C. is not justified at all.
4. The learned Prosecutor opposes the application. He submits
that even if it be assumed that allegation under Section 308 I.P.C. is
exaggerated and not sustainable, it remains that the petitioner has to
face the allegation under Section 452 I.P.C., in support of which
allegation adequate data is available. In these circumstances the
learned Prosecutor submits that the State has no objection in the
application for regular bail to be filed by the petitioner being
considered by the courts below ignoring the allegation under Section
308 I.P.C.
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5. The case diary has been placed before me. I have perused the
same. Having considered all the relevant inputs, I find the stand taken
by the learned Prosecutor to be absolutely justified. Though I am not
satisfied that directions under Section 438 Cr.P.C. can or need be
issued in favour of the petitioner, appropriate direction can be issued
regarding consideration of the application for regular bail to be
submitted by the petitioner.
6. This application is accordingly dismissed. But it is observed
that if the petitioner surrenders before the Investigating Officer or the
learned Magistrate within a period of ten days from this date and
applies for bail, the learned Magistrate must consider such application
on merits, in accordance with law and expeditiously eschewing and
ignoring the allegation under Section 308 I.P.C.
(R. BASANT)
Judge
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