IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4545 of 2007()
1. VINAYAN, AGED 22 YEARS, S/O.VIDYADHARAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY PUBLIC
... Respondent
For Petitioner :SRI.S.RAJEEV
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :30/07/2007
O R D E R
R. BASANT, J.
- - - - - - - - - - - - - - - - - - - - - -
B.A.No. 4545 of 2007
- - - - - - - - - - - - - - - - - - - - - -
Dated this the 30th day of July, 2007
O R D E R
Application for anticipatory bail. The petitioner is the 5th
accused. He, along with the co-accused, faces allegations in a crime
which was initially registered, inter alia, under Section 395 I.P.C.
and the provisions of the Explosive Substances Act. The crux of the
allegation is that when the defacto complainant was proceeding on a
two wheeler on 5.9.06 at about 10.15 p.m. the petitioners, who
happened to see him accidentally at that place and time, on account of
prior animosity attacked the defacto complainant. In the course of
such attack the purse containing money of the defacto complainant
fell down and the same was allegedly removed. In the F.I.R. three
persons are named. There is a specific allegation that there are others
also involved in the crime. In the course of investigation the police
have come to the conclusion that altogether there were only five
accused persons, who indulged in the culpable overt acts,
eventhough there were a large number of people available in the
spot. The petitioner was arrayed as 5th accused as per report dt.
9.10.2006. The case diary shows that after interrogating the other
B.A.No. 4545 of 2007
2
witnesses, who were available in the scene, the involvement of the
petitioner and the 4th accused ascertained. Investigation is in progress. The
petitioner has not been arrested so far. Accused 1 to 3 have subsequently
been arrested. Their statements have been recorded. Their confession
statements also indicate the involvement of the petitioner.
2. The learned counsel for the petitioner submits that the allegations
are totally false. The petitioner is a person, who resides in the
neighbourhood and in that capacity well known to the defacto complainant.
The learned counsel tries to take advantage of the fact that the petitioner
has not been named in the F.I.R. He further points out that though the
report dt. 9.10.06 is alleged to have been filed to include the petitioner in
the array of accused, the petitioner had no information about the said report
and the petitioner has come to know that the said report had reached the
court only in May, 2007. In these circumstances directions under Section
438 Cr.P.C. may be issued in favour of the petitioner, it is prayed.
3. The learned Prosecutor opposes the application. In the nature of
the allegations the Prosecutor was requested to place the case diary after
flagging the relevant pages. This court felt that it must be ascertained
whether allegations were raised against the petitioner and the 4th accused
on 9.10.06 itself or it was a subsequent inclusion malafide.
B.A.No. 4545 of 2007
3
4. I shall not embark on a detailed discussion on the acceptability of
the allegations raised or the credibility of the data collected. Suffice it to
say that perusal of the case diary conveys to me that the contention that
the petitioner and the co-accused have been arrayed as accused only in May,
2007 does not appear to be convincing at this stage. I am satisfied that
there are no circumstances which can persuade this Court to invoke the
extra ordinary equitable discretion under Section 438 Cr.P.C. 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. Needless to say, if
the petitioner appears 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 orders on merits, in accordance with law and expeditiously.
(R. BASANT)
Judge
tm
B.A.No. 4545 of 2007
4