IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 1059 of 2008()
1. THOMAS, AGED 58,
... Petitioner
Vs
1. STATE, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :26/02/2008
O R D E R
R. BASANT, J.
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B.A.No. 1059 of 2008
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Dated this the 26th day of February, 2008
O R D E R
Application for anticipatory bail. The petitioner is the first
accused in a crime registered alleging commission of the
offences punishable, inter alia, under Sections 307 and 326 I.P.C.
Initially allegations were raised only under Section 307 I.P.C.
In the course of investigation Section 326 I.P.C. has also been
included. The co-accused is none other than his wife. She has
been granted anticipatory bail as per order dt. 28.1.2008 in B.A.
328 of 2008. Facts have been adverted to in detail in that order.
This order must be read in continuation of that order. I am not
hence adverting to facts in any greater detail in this order.
2. The learned counsel for the petitioner submits that the
incident is not disputed, but it is not a case where the petitioner
and his wife were the aggressors. They were innocent victims of
aggression. The defacto complainant has questionable criminal
antecedents. It is actually he who has allegedly mounted an
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attack on the petitioner and his wife. The allegations raised are totally
unjustified. Raising of allegation under Section 307 I.P.C. reveals
want of bonafides. There is a civil disputes between the parties. There
are several litigations prior to this incident and subsequent to this
incident between the parties. The petitioner and his wife had also
suffered injuries in the course of the same incident. No crime has been
registered in respect of the said injuries suffered by the petitioner and
his wife so far. The petitioner, in these circumstances, prays that
anticipatory bail may be granted to the petitioner.
3. The learned Prosecutor opposes the application. He submits
that the contumacious and culpable role of the petitioner is
significantly different from the role alleged against his wife. The fact
that anticipatory bail has been granted to the wife of the petitioner is no
reason to justify the invocation of such extra ordinary equitable
discretion in favour of the petitioner herein. The allegations reveal that
the petitioner had mounted a deliberate and intentional attack with a
dangerous weapon on the defacto complainant and his wife. Serious
injuries have been suffered also. I have been taken through the wound
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certificate, which reveals that serious injuries have been suffered by the
victims.
4. On an anxious consideration of all the relevant inputs, I am
not persuaded to agree that there are any circumstances justifying or
warranting the invocation of the extra ordinary equitable discretion
under section 438 Cr.P.C. in favour of the petitioner. This, I agree
with the learned Prosecutor, is a fit case where the petitioner must be
directed to appear 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)
Judge
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