IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 1041 of 2008()
1. NAUFAL.P.K., ALIAS IKRU,
... Petitioner
Vs
1. SUB INSPECTOR OF POLICE, KATTOOR
... Respondent
For Petitioner :SRI.C.PRABIN BENNY
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :10/03/2008
O R D E R
R. BASANT, J.
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B.A. Nos. 1041, 1044 and 1209 OF 2008
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Dated this the 10th day of March, 2008
O R D E R
These applications are for anticipatory bail. The
petitioners face allegations in a crime registered alleging
offences punishable, inter alia, under sections 452, 354 and
323 IPC. The crux of the allegations is that the 1st accused
had entrusted a mobile phone with the de facto complainant
for sale thereof. The same was allegedly sold but the
proceeds were not handed over to A1. Because of this
animosity, the three accused persons allegedly had
trespassed into the residential building of the de facto
complainant. He was allegedly assaulted and hurt was
caused to him. The mother of the de facto complainant was
allegedly assaulted indecently. The incident took place on
6.1.08. Crime has been registered. Investigation is in
progress. The petitioners apprehend imminent arrest.
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2. The learned counsel for the petitioners submit that
the petitioners are innocent. In fact, the disputes have been
settled between the de facto complainants(CWs 1 and 2, the
son and the mother) and the petitioners. He has no grievance
now. He has sworn to an affidavit before an Advocate. In
these circumstances, anticipatory bail may be granted to the
petitioners, it is prayed.
3. Notice was given to the learned Public Prosecutor.
The learned Public Prosecutor, after taking instructions,
submits that to the best knowledge of the investigator no bona
fide settlement has taken effect. It is submitted that the de
facto complainant and his mother were threatened to submit
that there is no willing and voluntary settlement. In these
circumstances, the alleged settlement may not be reckoned
as a relevant circumstance to grant anticipatory bail to the
petitioners. In any view of the matter, the petitioners may not
be granted anticipatory bail, it is submitted.
4. The learned counsel for the petitioners submit that
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the investigating officer has animus against the petitioners
and that is why such stand is taken by the investigating
officer. The learned counsel for the petitioners pray that the
petitioners may be given an opportunity to surrender before
the learned Magistrate and seek regular bail without the
threat/risk of their arrest by the police and going into police
custody except through court.
5. Having considered all the relevant circumstances, I
am satisfied that directions under section 438 Cr.P.C. can be
issued in favour of the petitioners to enable them to surrender
before the learned Magistrate and seek regular bail without
the threat and risk of arrest by the police and incarceration
before they go into the custody of the court. They can, I am
satisfied, be given an opportunity to surrender before the
learned Magistrate and seek regular bail.
6. In the result, these petitions are allowed. Following
directions are issued under Section 438 Cr.P.C in favour of
the petitioners.
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i) Petitioners shall surrender before the learned
Magistrate having jurisdiction at 11 a.m on 17.3.08. They
may, after giving prior notice to the Prosecutor in charge of
the case, apply for bail. The learned Magistrate must pass
appropriate orders on such application by the petitioners and
any other application to be filed by the police. The petitioners
shall thereafter abide by the orders to be passed by the
learned Magistrate.
(ii) 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 thereafter
be at liberty to arrest the petitioners and deal with them in
accordance with law, as if these directions were not issued at
all.
(iii) If they were arrested prior to 17.3.08, they shall be
released from custody on their executing a bond for
Rs.25,000/- undertaking to appear before the learned
Magistrate on 17.3.08.
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7. The learned Public Prosecutor submits that he has
information that the 1st accused has already been arrested by
the police in connection with some other case. The learned
counsel for the 1st accused is not sure of that circumstance. If
the 1st accused has been so arrested, needless to say, the
police or the petitioner can move the court concerned to get
his arrest recorded in the instant case and then seek regular
bail.
8. Needless to say, it shall be open to the petitioners
to satisfy the learned Magistrate that Cws 1 and 2 have
willingly and voluntarily settled the disputes and compounded
the offence.
(R.BASANT, JUDGE)
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