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
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B.A.No.5528 of 2007
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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