IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 238 of 2008()
1. K.P.JOHN @ JOHNY,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED
... Respondent
For Petitioner :SRI.S.NIRMAL KUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
Dated :17/01/2008
O R D E R
R. BASANT, J.
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B.A.No. 238 of 2008
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Dated this the 17th day of January, 2008
O R D E R
Application for anticipatory bail. The petitioner is the 5th
accused. He faces allegations in a crime registered alleging
offences punishable, inter alia, under Sections 452 and 308
I.P.C. The crux of the allegations against the accused in that
F.I.R. is that they – two identifiable persons – trespassed into a
toddy shop, where the defacto complainant is an employee and
unleashed an attack on him with dangerous weapons, resulting in
injuries to him. The defacto complainant had no clue of the
identity of the assailants or as to why he was attacked by them.
The alleged incident took place on 13.12.2006. The defacto
complainant was hospitalised. On the basis of the F.I. statement
recorded when he was in the hospital, crime was registered on
15.12.2006. Investigation was conducted. Investigation by the
local Sub Inspectors did not yield any tangible result.
Investigation was hence taken over by superior official, the
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Circle Inspector. He conducted a thorough and detailed investigation,
in the course of which, he came to know that the 5th accused had
entertained animosity against the defacto complainant, that he had
engaged the first accused to retaliate against the defacto complainant
and the first accused in turn had engaged accused 2 to 4, who had
carried out the operation. Two of the three miscreants had entered the
toddy shop while the other did not enter the shop. Accused 2 to 4 have
already been arrested. Their statements have been recorded. The
culpable involvement of the 5th accused was confirmed by the materials
collected. He has not been arrested yet. He apprehends imminent
arrest.
2. The learned counsel for the petitioner submits that the
petitioner is absolutely innocent. The alleged motive is too slender and
feeble to justify the alleged attack. The allegations raised in the F.I.
statement are not consistent with the present version that accused 2 to 4
had attacked the victim. The counsel also points out that the case of
the prosecution narrated in the order of the learned Sessions Judge
does not tally with the case put forward by the learned Prosecutor now.
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3. The learned Prosecutor opposes the application. He submits
that he is advancing the case of the police on the basis of the details
available in the case diary. There is nothing to assume that the first
accused had actually taken part in the operation and inflicted any injury
on the defacto complainant. Such innocuous misstatement in the order
passed by the learned Sessions Judge may not be reckoned as vital or
crucial while considering this application, submits the Prosecutor. The
investigation has revealed that the unknown miscreants had come
along with another to the scene of the crime and that one of them was
waiting outside. Only two had entered the shop and attacked the
defacto complainant. In these circumstances the fact that accused 2 to
4 have been arrayed as miscreants engaged by the first accused is not
inconsistent with the allegations in the F.I. statement, submits the
Prosecutor.
4. Having considered all the relevant inputs, I find merit in the
opposition by the learned Prosecutor. I am unable to find any features
in this case, which would justify the invocation of the extra ordinary
equitable discretion under section 438 Cr.P.C. in favour of the
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petitioner. In a case like this, where the actual assailants have no
motive whatsoever against the victim, it will be improper for the court
to draw any crucial adverse inference against the prosecution for the
inadequacies in the F.I. statement. The totality of circumstances do
convince me that the Investigators must be given opportunity to
interrogate the petitioner. This I am satisfied is a fit case where the
petitioner must resort to the ordinary and normal procedure of
appearing before the Investigator or the learned Magistrate having
jurisdiction and then seek regular bail in the ordinary course.
5. This application is accordingly dismissed. I may
however hasten to observe that 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 orders on merits, in accordance with
law and expeditiously.
(R. BASANT)
tm Judge
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