IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 7056 of 2007()
1. NISHAD, KOLLAMPARAMBIL HOUSE,
... Petitioner
2. SUNIL, EREZHATHUL HOUSE,
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
For Petitioner :SRI.A.AHZAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :21/11/2007
O R D E R
R. BASANT, J.
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B.A.No. 7056 of 2007
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Dated this the 21st day of November, 2007
O R D E R
Application for anticipatory bail. The petitioners are
accused 2 and 4. Altogether five persons have been arrayed as
accused by now. Allegation is under Section 380 r/w. 34 I.P.C.
The crux of the allegations in the F.I.R. is that theft of Jo plates
and iron parts, which were kept in the shed in a quarry operated
by the defacto complainant, were thieved on 13.10.2007. In the
course of investigation accused 1 and 5 were arrested. Their
interrogation led to the ascertainment of the role of the
petitioners also in the crime committed. The petitioners have not
been arrested so far. They are allegedly absconding. The
petitioners apprehend imminent arrest.
2. The learned counsel for the petitioners submits that the
petitioners are absolutely innocent. Totally false allegations are
raised against the petitioners.
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3. The learned Prosecutor submits that the Investigators had
arrested accused 1 and 5 and from their confession statements the
Investigators have ascertained the role of the petitioners in the crime
committed. Only part of the booty has been recovered. The petitioners
have to be arrested and interrogated. Only on such interrogation can
truth be ascertained completely. At the moment and with the available
inputs, there are no circumstances at all that can justify the invocation
of the extra ordinary equitable discretion under Section 438 Cr.P.C.
4. The case diary has been placed before me for my perusal.
The learned Prosecutor has drawn my attention particularly to the
confession statements of the arrested accused. The learned counsel for
the petitioner had drawn my attention to the remand report submitted
by the police after arrest of some of the accused. The remand report
does show the involvement of the other accused persons in the crime,
though such other accused had not been named in the remand report
when the arrested accused were produced before Court.
5. Having considered all the relevant Inputs, I find no features
in this case, which would justify the invocation of the extra ordinary
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equitable discretion under section 438 Cr.P.C. in favour of the
petitioners. This I am satisfied is a fit case where the petitioners must
be directed to appear 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 petitioners appear before the
learned Magistrate and apply 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)
Judge
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