High Court Kerala High Court

K.P.John @ Johny vs State Of Kerala on 17 January, 2008

Kerala High Court
K.P.John @ Johny vs State Of Kerala on 17 January, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl No. 238 of 2008()


1. K.P.JOHN @ JOHNY,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED
                       ...       Respondent

                For Petitioner  :SRI.S.NIRMAL KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :17/01/2008

 O R D E R
                            R. BASANT, J.
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                     B.A.No. 238 of 2008
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             Dated this the 17th day of January, 2008

                               O R D E R

Application for anticipatory bail. The petitioner is the 5th

accused. He faces allegations in a crime registered alleging

offences punishable, inter alia, under Sections 452 and 308

I.P.C. The crux of the allegations against the accused in that

F.I.R. is that they – two identifiable persons – trespassed into a

toddy shop, where the defacto complainant is an employee and

unleashed an attack on him with dangerous weapons, resulting in

injuries to him. The defacto complainant had no clue of the

identity of the assailants or as to why he was attacked by them.

The alleged incident took place on 13.12.2006. The defacto

complainant was hospitalised. On the basis of the F.I. statement

recorded when he was in the hospital, crime was registered on

15.12.2006. Investigation was conducted. Investigation by the

local Sub Inspectors did not yield any tangible result.

Investigation was hence taken over by superior official, the

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Circle Inspector. He conducted a thorough and detailed investigation,

in the course of which, he came to know that the 5th accused had

entertained animosity against the defacto complainant, that he had

engaged the first accused to retaliate against the defacto complainant

and the first accused in turn had engaged accused 2 to 4, who had

carried out the operation. Two of the three miscreants had entered the

toddy shop while the other did not enter the shop. Accused 2 to 4 have

already been arrested. Their statements have been recorded. The

culpable involvement of the 5th accused was confirmed by the materials

collected. He has not been arrested yet. He apprehends imminent

arrest.

2. The learned counsel for the petitioner submits that the

petitioner is absolutely innocent. The alleged motive is too slender and

feeble to justify the alleged attack. The allegations raised in the F.I.

statement are not consistent with the present version that accused 2 to 4

had attacked the victim. The counsel also points out that the case of

the prosecution narrated in the order of the learned Sessions Judge

does not tally with the case put forward by the learned Prosecutor now.

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3. The learned Prosecutor opposes the application. He submits

that he is advancing the case of the police on the basis of the details

available in the case diary. There is nothing to assume that the first

accused had actually taken part in the operation and inflicted any injury

on the defacto complainant. Such innocuous misstatement in the order

passed by the learned Sessions Judge may not be reckoned as vital or

crucial while considering this application, submits the Prosecutor. The

investigation has revealed that the unknown miscreants had come

along with another to the scene of the crime and that one of them was

waiting outside. Only two had entered the shop and attacked the

defacto complainant. In these circumstances the fact that accused 2 to

4 have been arrayed as miscreants engaged by the first accused is not

inconsistent with the allegations in the F.I. statement, submits the

Prosecutor.

4. Having considered all the relevant inputs, I find merit in the

opposition by the learned Prosecutor. I am unable to find any features

in this case, which would justify the invocation of the extra ordinary

equitable discretion under section 438 Cr.P.C. in favour of the

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petitioner. In a case like this, where the actual assailants have no

motive whatsoever against the victim, it will be improper for the court

to draw any crucial adverse inference against the prosecution for the

inadequacies in the F.I. statement. The totality of circumstances do

convince me that the Investigators must be given opportunity to

interrogate the petitioner. This I am satisfied is a fit case where the

petitioner must 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. I may

however hasten to observe that if the petitioner appears before 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 orders on merits, in accordance with

law and expeditiously.





                                               (R. BASANT)
tm                                                 Judge

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