IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 4409 of 2007()
1. MUHAMMADALI, S/O.ABDULLAKUTTY,
... Petitioner
2. RIYAS.P.K., S/O.KUNHAMMED,
3. ISMATH AND SHAMEER.C.N., S/O.KHADER,
Vs
1. STATE OF KERALA (S.H.O. KUTHUPARAMBA
... Respondent
For Petitioner :SRI.P.P.RAMACHANDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :23/07/2007
O R D E R
R. BASANT, J.
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B.A. NO. 4409 OF 2007
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Dated this the 23rd day of July, 2007
ORDER
Application for anticipatory bail. The petitioners face
indictment for offences punishable, inter alia, under Secs.324
and 308 read with Sec.149 of the IPC. The petitioners are
accused 1, 5 and 7. The crux of the allegations against the
petitioners is that they were members of an unlawful assembly
of persons, who in prosecution of their common object, threw
stones at a procession. The procession was of Congress men.
The petitioners allegedly belong to the L.D.F. Investigation is
complete. Final report has already been filed. Committal
proceedings has been registered. The petitioners apprehend
arrest in execution of the coercive processes issued by the
learned Magistrate.
2. The learned counsel for the petitioners submits that
the allegations under Sec.308 of the IPC have been raised
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without any valid reason. Solely with the intention of vexing
and harassing the petitioners, the allegation under Sec.308 of
the IPC has been included. The allegation is only stone
throwing and the injury suffered is a 5 x 3 cms. abrasion on the
right knee by the victim. The allegation under Sec.308 of the
IPC is raised only to ensure that the petitioners remain in
custody for as long a period as possible by making it appear
that the offence punishable is a serious sessions offence.
Appropriate directions may be issued under Sec.438 of the
Cr.P.C., it is prayed.
3. The learned Public Prosecutor, in the facts and
circumstances of this case, does not oppose the application.
After the decision in Bharat Chaudhary and another v. State
of Bihar (AIR 2003 SC 4662), it is trite that the powers under
Sec.438 of the Cr.P.C. can be invoked in a case where the
apprehended arrest is in execution of coercive process issued by
a court after taking cognizance. In the facts and circumstances
of this case, I am satisfied that this is an eminently fit case where
such extraordinary equitable discretion does deserve to be
invoked.
4. In the result, this petition is allowed. Following
directions are issued under Sec.438 of the Cr.P.C:
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(i) The petitioners shall appear before the learned
Magistrate having jurisdiction at 11 a.m. on 30/7/07. They shall
be released on regular bail on their executing bonds for
Rs.25,000/- each with two solvent sureties each for the like sum
to the satisfaction of the learned Magistrate.
(ii) The petitioners shall make themselves available for
interrogation before the Investigating Officer between 10 a.m.
and 3 p.m. on 31/7/07 and thereafter as and when directed by
the Investigating Officer in writing to do so.
(iii) If the petitioners do not appear before the learned
Magistrate as directed in clause (i), directions issued above shall
thereafter stand revoked and the police shall be at liberty to
arrest the petitioners and deal with them in accordance with law
as if those directions were not issued at all;
(iv) If the petitioners were arrested prior to their surrender
on 30/7/07 as directed in clause (i) above, they shall be released
on their executing bonds for Rs.25,000/- each without any
sureties undertaking to appear before the learned Magistrate on
30/7/07.
Sd/-
(R. BASANT, JUDGE)
Nan/ //true copy// P.S. To Judge
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