High Court Kerala High Court

Muhammadali vs State Of Kerala (S.H.O. … on 23 July, 2007

Kerala High Court
Muhammadali vs State Of Kerala (S.H.O. … on 23 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl No. 4409 of 2007()


1. MUHAMMADALI, S/O.ABDULLAKUTTY,
                      ...  Petitioner
2. RIYAS.P.K., S/O.KUNHAMMED,
3. ISMATH AND SHAMEER.C.N., S/O.KHADER,

                        Vs



1. STATE OF KERALA (S.H.O. KUTHUPARAMBA
                       ...       Respondent

                For Petitioner  :SRI.P.P.RAMACHANDRAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :23/07/2007

 O R D E R






                                R. BASANT, J.

               -------------------------------------------------

                        B.A. NO. 4409  OF  2007

               -------------------------------------------------

               Dated this the  23rd    day of July, 2007



                                    ORDER

Application for anticipatory bail. The petitioners face

indictment for offences punishable, inter alia, under Secs.324

and 308 read with Sec.149 of the IPC. The petitioners are

accused 1, 5 and 7. The crux of the allegations against the

petitioners is that they were members of an unlawful assembly

of persons, who in prosecution of their common object, threw

stones at a procession. The procession was of Congress men.

The petitioners allegedly belong to the L.D.F. Investigation is

complete. Final report has already been filed. Committal

proceedings has been registered. The petitioners apprehend

arrest in execution of the coercive processes issued by the

learned Magistrate.

2. The learned counsel for the petitioners submits that

the allegations under Sec.308 of the IPC have been raised

B.A. NO. 4409 OF 2007 -: 2 :-

without any valid reason. Solely with the intention of vexing

and harassing the petitioners, the allegation under Sec.308 of

the IPC has been included. The allegation is only stone

throwing and the injury suffered is a 5 x 3 cms. abrasion on the

right knee by the victim. The allegation under Sec.308 of the

IPC is raised only to ensure that the petitioners remain in

custody for as long a period as possible by making it appear

that the offence punishable is a serious sessions offence.

Appropriate directions may be issued under Sec.438 of the

Cr.P.C., it is prayed.

3. The learned Public Prosecutor, in the facts and

circumstances of this case, does not oppose the application.

After the decision in Bharat Chaudhary and another v. State

of Bihar (AIR 2003 SC 4662), it is trite that the powers under

Sec.438 of the Cr.P.C. can be invoked in a case where the

apprehended arrest is in execution of coercive process issued by

a court after taking cognizance. In the facts and circumstances

of this case, I am satisfied that this is an eminently fit case where

such extraordinary equitable discretion does deserve to be

invoked.

4. In the result, this petition is allowed. Following

directions are issued under Sec.438 of the Cr.P.C:

B.A. NO. 4409 OF 2007 -: 3 :-

(i) The petitioners shall appear before the learned

Magistrate having jurisdiction at 11 a.m. on 30/7/07. They shall

be released on regular bail on their executing bonds for

Rs.25,000/- each with two solvent sureties each for the like sum

to the satisfaction of the learned Magistrate.

(ii) The petitioners shall make themselves available for

interrogation before the Investigating Officer between 10 a.m.

and 3 p.m. on 31/7/07 and thereafter as and when directed by

the Investigating Officer in writing to do so.

(iii) If the petitioners do not appear before the learned

Magistrate as directed in clause (i), directions issued above shall

thereafter stand revoked and the police shall be at liberty to

arrest the petitioners and deal with them in accordance with law

as if those directions were not issued at all;

(iv) If the petitioners were arrested prior to their surrender

on 30/7/07 as directed in clause (i) above, they shall be released

on their executing bonds for Rs.25,000/- each without any

sureties undertaking to appear before the learned Magistrate on

30/7/07.

Sd/-


                                                       (R. BASANT, JUDGE)




Nan/                //true copy//        P.S. To Judge


B.A. NO. 4409  OF  2007    -: 4 :-