IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 1375 of 2008()
1. BINOJ, S/O.SIVARAMAN, AGED 28 YEARS,
... Petitioner
2. SURESHBABU, S/O.VELAYUDHAN,
3. RAJESH.K.V., S/O.SANKARAN NAIR,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.SANTHEEP ANKARATH
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :07/03/2008
O R D E R
R.BASANT, J.
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B.A.No.1375 of 2008
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Dated this the 7th day of March 2008
O R D E R
Application for anticipatory bail. The petitioners are
accused 2 to 4. Altogether there are five accused persons. On
account of prior animosity, all the accused persons, who were
members of an unlawful assembly armed with dangerous
weapons like iron rods had attacked the de facto complainant.
He allegedly lost two teeth. The other injury suffered is only a
lacerated wound (dimensions not mentioned) on the left hand
and some contusion. Investigation is in progress. The
petitioners apprehend imminent arrest.
2. The learned counsel for the petitioners submits that
the petitioners are absolutely innocent. False and vexatious
allegations are being raised against them. Even if all the
allegations were accepted, the inclusion of the offence under
Section 308 I.P.C in the F.I.R eloquently declares that the motive
of the de facto complainant with the help of an obliging police is
only to vex and harass the petitioners. There is absolutely no
justification to include the allegation under Section 308 I.P.C,
contends the learned counsel for the petitioner.
B.A.No.1375/08 2
3. The de facto complainant has entered appearance
through a counsel. He opposes the application. He submits that
it is part of the schemed and planned attack on the de facto
complainant by the petitioners. The petitioners do not deserve
any leniency. Anticipatory bail may not be granted. That would
encourage the miscreants to mount further attacks on the victim,
submits the learned counsel for the de facto complainant. He
further points out that the second accused is involved in other
crimes.
4. The learned Public Prosecutor also opposes the
application. The learned Public Prosecutor however concedes
that the State has no objection against application for regular
bail being considered by the learned Magistrate eschewing the
allegation under Section 308 I.P.C.
5. I have considered all the relevant inputs. There is no
allegation that anyone of the accused persons is a mercenary
engaged by some other person to mount an attack on the de
facto complainant. The nature of injuries recorded in the wound
certificate has been read over to me by the learned Public
Prosecutor. I am satisfied in these circumstances that this is a fit
case where the petitioners must surrender before the
B.A.No.1375/08 3
investigating officer or the learned Magistrate having
jurisdiction and then seek regular bail in the normal and usual
course. However, I am satisfied that it can be directed that the
learned Magistrate must consider such application for regular
bail expeditiously. The learned Magistrate can consider the
same ignoring the allegation under Section 308 I.P.C. This
petition can succeed only to the above extent.
6. In the result, this petition is dismissed. Needless to
say, if the petitioners surrender 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, in accordance with law and expeditiously. While
considering such application, the learned Magistrate shall
eschew and ignore the allegation raised under Section 308 I.P.C.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
B.A.No.1375/08 4
B.A.No.1375/08 5
R.BASANT, J.
CRL.M.CNo.
ORDER
21ST DAY OF MAY2007