IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 3971 of 2007(S)
1. SOMAN, AGED 5O YEARS,
... Petitioner
2. VIJAYAN NAIR, AGED 57,
3. SADAN, AGED 45 YEARS,
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.V.V.NANDAGOPAL NAMBIAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :05/07/2007
O R D E R
R. BASANT, J.
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B.A.NO.3971 OF 2007
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Dated this the 5th day of July, 2007
ORDER
The petitioners are accused 2, 3 and 4 in a crime
registered under Sec.302 of the IPC. In the First Information
Statement, the names of the petitioners do appear; but there
is no allegation of any contumacious act against them. An
F.I.R. was registered as early as on 31/1/06. The alleged
incident had taken place on the night of 28/1/06. In the F.I.R.,
the 1st accused alone is arrayed as an accused. The brother of
the deceased had lodged the First Information Statement.
2. The crux of the allegations in the F.I.R. is that the
deceased, the accused and the petitioners had together in a
very joyous mood in an autorikshaw of one Jayakrishnan to
attend the festival in a local temple. While they were
travelling in the autorikshaw, there was some disagreement
B.A.NO.3971 OF 2007 -: 2 :-
and exchange of words between the 1st accused and the
deceased. The 1st accused is alleged to have beaten/hit the
deceased with a stone. The deceased was left by the side of the
road in the injured condition and all others went home. The
next morning the deceased was found lying at the place where
they left him. He was removed to the hospital. Subsequently,
he succumbed to the injuries after a surgery was allegedly
performed on him. Investigation commenced with the 1st
accused alone on the party array. In the course of investigation,
the petitioners have been arrayed as accused. The principal
accused has been arrested and enlarged on bail. The petitioners
apprehend imminent arrest.
3. The learned counsel for the petitioners submits that, in
any view of the matter, the petitioners do not deserve to be
arrested and kept in custody to face an allegation under Sec.302
of the IPC. There is no specific overt act alleged to have been
committed by any of the petitioners against the deceased. At
worst, the allegation can only be that they did not remove the
injured to the hospital after he suffered injuries allegedly at the
hands of the 1st accused. The learned counsel for the petitioners
points out that no one assumed or anticipated the injuries to turn
out to be fatal, even going by the prosecution case. For the
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alleged indiscretion committed by the petitioners – that of not
removing a friend who had suffered some minor injuries to the
hospital and for having left him at the place where he was and
for having proceeded to their respective houses, they may not be
compelled to suffer and endure the undeserved trauma of arrest
and incarceration for a capital offence. This is an ideally fit
case where the powers under Sec.438 of the Cr.P.C. can and
ought to be invoked in favour of the petitioners, submits the
learned counsel for the petitioners. The petitioners are willing
to co- operate with the Investigators. They shall surrender
before the Investigators and make themselves available for
interrogation for any length of time as may be prescribed by this
Court in the interests of justice reasonably, submits the learned
counsel for the petitioners.
4. The learned Public Prosecutor does not make any
concession obviously because of the gravity of the allegation
raised. But called upon to point out and explain the culpable
and contumacious role of the petitioners, I find the learned
Public Prosecutor has not made any submission which can
persuade this Court to feel that the petitioners will even
remotely have to face the charge under Sec.302 of the IPC. The
autorikshaw driver is the only other person other than the
B.A.NO.3971 OF 2007 -: 4 :-
accused and the deceased who had allegedly witnessed the
occurrence. His statement does not specifically indicate any
overt act committed by the petitioners or even sharing of the
common intention/common object to cause the death of the
deceased.
5. I am, in these circumstances, satisfied that
notwithstanding the fact that the very serious allegation – of
murder has been raised against the petitioners, they are entitled
to the invocation of the extraordinary equitable discretion
available to this Court. Appropriate conditions can, of course,
be imposed in the interests of a fair, efficient and expeditious
investigation.
6. In the result, this petition is allowed. Following
directions are issued under Sec.438 of the Cr.P.C:
(i) The petitioners shall appear before the learned
Magistrate having jurisdiction at 11 a.m. on 12/7/07. 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 4 p.m. on 13/7/07, 14/7/07, 15/7/07 and 16/7/07. During this
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period it shall be open to the Investigating Officer to keep
themselves in custody, interrogate them and effect recoveries, if
any. Thereafter, the petitioners shall make themselves available
for interrogation before the Investigating Officer on all
Mondays and Fridays between 10 a.m. and 12 noon until further
orders.
(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 12/7/07 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
12/7/07.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy// P.S. To Judge