IN THE HIGH COURT OF KERALA AT ERNAKULAM Bail Appl No. 4304 of 2007() 1. E.J.ROY, S/O KUNHUKUNHU, ... Petitioner Vs 1. STATE - EXCISE RANGE OFFICER, ... Respondent For Petitioner :SRI.GRASHIOUS KURIAKOSE For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice R.BASANT Dated :16/07/2007 O R D E R R.BASANT, J ------------------------------------ B.A.No.4304 of 2007 ------------------------------------- Dated this the 16th day of July, 2007 ORDER
Application for anticipatory bail. The petitioner along with two
co-accused was allegedly involved in the illicit activity of distillation of
liquor. The alleged incident took place on 23.08.06. When the excise
party reached the scene, the petitioner along with the 3rd accused
allegedly took to his heels and could not be apprehended. The 1st
accused was arrested. The seizure mahazar and the occurrence
report show the presence and involvement of the petitioner. The
petitioner could not be arrested. The co-accused have already been
arrested and enlarged on bail. Investigation is in progress. The
petitioner apprehends imminent arrest.
2. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. He has been unnecessarily arrayed
as an accused. The 1st accused had furnished false and incorrect
information to the police implicating the petitioner in an attempt to
save his real associates. The petitioner’s mother is seriously ill. She
is paralysed. In these circumstances, anticipatory bail may be
granted to the petitioner, it is submitted.
3. The learned Public Prosecutor on instructions submits
that the investigation is already complete. Final report has already
been filed. The petitioner need only appear before the learned
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Magistrate and seek bail now. There are no circumstances justifying
the invocation of the jurisdiction under Section 438 Cr.P.C.
4. In the facts and circumstances of the case, I find merit in
the opposition by the learned Public Prosecutor. This, I am satisfied,
is a fit case where the petitioner must appear before the Investigating
Officer or the learned Magistrate and then seek regular bail. The
final report having already been filed, the petitioner can certainly
appear before the learned Magistrate and seek bail. I have no reason
to assume that his application for bail may not be considered by the
learned Magistrate on merits, in accordance with law and
5. The submission that the petitioner has been falsely
implicated by the 1st accused and that the petitioner is entitled to
anticipatory bail because of the illness of his mother do not at all find
favour with me in the facts and circumstances of this case.
6. This bail application is, in these circumstances, dismissed.
Needless to say, if the petitioner appears before 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 – on
the date of surrender itself.
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