P.N. Gopalakrishnan (Assistant … vs Dy. Superintendent Of Police on 5 September, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 3420 of 2008()


1. P.N. GOPALAKRISHNAN (ASSISTANT SUB
                      ...  Petitioner

                        Vs



1. DY. SUPERINTENDENT OF POLICE,
                       ...       Respondent

2. STATE OF KERALA, REPRESENTED BY THE

                For Petitioner  :SRI.SURESH KUMAR KODOTH

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :05/09/2008

 O R D E R
                          R. BASANT, J.
            -------------------------------------------------
                  Crl.M.C. No. 3420 of 2008
            -------------------------------------------------
        Dated this the 5th day of September, 2008

                               ORDER

The petitioner faces indictment as the 5th accused in a

crime which was registered initially under the caption “woman

missing”. Later, in the course of investigation, an allegation

under Sec.302 IPC was included. According to the petitioner,

there is no allegation whatsoever against him for the offence

under Sec.302 IPC. In the crime, the offence under Sec.201

IPC has subsequently been included by a report filed by the

Investigating Officer. The petitioner has also been arrayed

as an accused. The counsel submits that as against the

petitioner, even accepting the worst allegations against him,

there is no chance or semblance of allegation under Sec.302

IPC. The petitioner is willing to surrender before the learned

Magistrate and seek regular bail. But the petitioner

Crl.M.C. No. 3420 of 2008 -: 2 :-

apprehends that the learned Magistrate merely because the

Section of offence alleged in the FIR is 302 may not consider the

application for bail filed by the petitioner. The mere fact that as

against the co-accused the allegation under Sec.302 IPC has

been included may not be permitted to operate to the prejudice

of the petitioner, submits the learned counsel for the petitioner.

As the petitioner apprehends that the learned Magistrate may

follow such a course which does not have the sanction of law,

the petitioner has come to this Court with a request that

directions under Sec.482 Cr.P.C. may be issued.

2. The petitioner must surrender before the learned

Magistrate and seek regular bail. His application for bail must

be considered by the learned Magistrate on merits, in

accordance with law and expeditiously. If there is no allegation

raised against the petitioner under Sec.302 IPC either directly or

vicariously, there can be no question of the petitioner’s bail

application being rejected for the reason that in the crime the

offence under Sec.302 IPC is also alleged. I do not think that

any specific or special directions need be issued. It is

elementary that the learned Magistrate must look into the

allegations against the petitioner and not merely the allegations

raised in the crime against the other accused persons. I have no

Crl.M.C. No. 3420 of 2008 -: 3 :-

reason to assume that the learned Magistrate would not properly

advert to the real issues in the case and will not consider the

petitioner’s application for regular bail on merits, in accordance

with law and expeditiously. Sufficient general directions have

already been issued in the decision reported in Alice George v.

Deputy Superintendent of Police (2003 (1) KLT 339). No

further or specific directions appears to be necessary.

3. This Crl.M.C. is, in these circumstances, dismissed with

the above observations.

5. Hand over a copy of this order to the learned counsel for

the petitioner.

Sd/-

(R. BASANT, JUDGE)

Nan/

//true copy//

P.S. to Judge

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