Binu vs State Of Kerala on 7 April, 2008

Kerala High Court
Binu vs State Of Kerala on 7 April, 2008




Bail Appl No. 2025 of 2008()

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SRI.P.VIJAYA BHANU

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :07/04/2008

 O R D E R
                          R. BASANT, J.
                     B.A. No. 2025 of 2008
            Dated this the 7th day of April, 2008


Application for anticipatory bail. The petitioner is the 1st

accused. Altogether, there are 2 accused persons. The 2nd

accused has already been arrested. Both the accused persons

have been named in the F.I.R. The alleged incident took place

on 21/3/08. The crux of the allegations against the petitioner

is that they allegedly tormented and assaulted the sister of the

de facto complainant who attends a tutorial college. On

receipt of information from the tutorial college, the petitioner

in desperation was proceeding towards the tutorial college at

which time the accused persons came in a vehicle and stopped

near the de facto complainant. The de facto complainant

questioned them as to what they had done to his sister. At this

point of time, the accused persons allegedly attacked the de

B.A. No. 2025 of 2008 -: 2 :-

facto complainant with dangerous weapons. One was carrying a

sword and the other was carrying an iron rod. The de facto

complainant ran for shelter towards his house. The accused

persons are alleged to have followed him. The sword was

thrown at the de facto complainant. He was allegedly attacked

by the miscreants after he entered the house. The miscreants

allegedly followed him into his house. Allegations are raised,

inter alia, under Secs.452 of the IPC and Sec.27 of the Arms Act.

Investigation is in progress. The petitioner apprehends

imminent arrest. No wound certificate is available in the file

though there are indications to show that the victim has suffered

some injuries from the body note which forms part of the First

Information Statement.

2. The learned counsel for the petitioner submits that the

petitioner is absolutely innocent. The allegations are inherently

improbable. If the de facto complainant had received information

about what transpired at the tutorial college, how is it that he is

able to see the miscreants when he went out of his house

towards the road. Significantly, the Case Diary does not reveal

and the petitioner does not advance a definite version about the

distance between the tutorial college and the house of the de

facto complainant. In these circumstances, that alleged

B.A. No. 2025 of 2008 -: 3 :-

circumstance cannot be reckoned as one indicating such

improbability as to justify the invocation of the extraordinary

equitable discretion under Sec.438 of the Cr.P.C. This, I agree

with the learned Public Prosecutor, is a fit case where the

petitioner must resort to the ordinary and normal course of

appearing before the Investigating Officer or the learned

Magistrate having jurisdiction and then seek regular bail in the

ordinary course.

3. In the result, this bail application is dismissed; but with

the observation that if the petitioner surrenders before the

Investigating Officer or the learned Magistrate and seeks 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.




//true copy//

P.S. to Judge

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