High Court Kerala High Court

Abdul Nazar K.K. vs State Of Kerala Represented By on 19 September, 2007

Kerala High Court
Abdul Nazar K.K. vs State Of Kerala Represented By on 19 September, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl No. 5528 of 2007()


1. ABDUL NAZAR K.K., S/O.ABDUL RAHIMAN,
                      ...  Petitioner
2. SHAMSUDHEEN K.K., S/O.ABDUL RAHIMAN,
3. ABDUL RAHEEM.K.K, S/O.ABDUL RAHIMAN,

                        Vs



1. STATE OF KERALA REPRESENTED BY
                       ...       Respondent

                For Petitioner  :SRI.K.A.SALIL NARAYANAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :19/09/2007

 O R D E R
                                 R.BASANT, J
                          ------------------------------------
                           B.A.No.5528 of 2007
                         -------------------------------------
             Dated this the 19th day of September, 2007

                                      ORDER

Application for anticipatory bail. The petitioners are accused 2, 3

& 5. They face allegations, inter alia, under Section 308, 323 and 324

r/w 149 I.P.C. The alleged incident took place on 27.08.07. There

allegedly was a dispute between some travellers in a sumo van and

the accused. The defacto complainant allegedly reached the scene and

attempted to intervene. He was then assaulted by the accused

persons. The defacto complainant’s father also tried to intervene and

he has suffered a fracture.

2. The learned counsel for the petitioners submits that the

petitioners are absolutely innocent. At any rate, it cannot be assumed

or inferred that they have any malice against the defacto complainant

and his father. Even allegedly the occurrence took place when the

defacto complainant and the victim intervened in a prior dispute

between two other groups. The allegation under Section 308 I.P.C is

totally unjustified. It is, in these circumstances, prayed that directions

under Section 438 Cr.P.C in favour of the petitioners.

3. After discussions at the Bar, the learned Public Prosecutor

accepts that the B.A filed by the petitioners can be considered as if

B.A.No.5528 of 2007 2

there is no allegation under Section 308 I.P.C. But the learned Public

Prosecutor submits that even then this is not a fit case where

directions under Section 438 Cr.P.C can or ought to be issued in favour

of the petitioners. The petitioners must follow the normal and

ordinary course of appearing before the Investigating Officer or the

learned Magistrate having jurisdiction and then seek regular bail.

4. I am satisfied that there is merit in the opposition by the

learned Public Prosecutor. I agree that there can be a direction to the

learned Magistrate to consider the application for bail as if the

allegation under Section 308 I.P.C is not there at all. The learned

Magistrate can consider the application for regular bail on the other

allegations including the allegation that the victim has suffered a

fracture. Consequently an offence under Section 326 I.P.C is also

alleged.

5. This application is, in these circumstances, dismissed, but I

may hasten to observe that if the petitioner surrenders 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 appropriate orders on

merits and expeditiously. Such application shall be considered

reckoning that there is no allegation under Section 308 I.P.C.

(R.BASANT, JUDGE)
rtr/-

B.A.No.5528 of 2007 3