High Court Kerala High Court

Vinayan vs State Of Kerala on 30 July, 2007

Kerala High Court
Vinayan vs State Of Kerala on 30 July, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl No. 4545 of 2007()


1. VINAYAN, AGED 22 YEARS, S/O.VIDYADHARAN,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY PUBLIC
                       ...       Respondent

                For Petitioner  :SRI.S.RAJEEV

                For Respondent  : No Appearance

The Hon'ble MR. Justice R.BASANT

 Dated :30/07/2007

 O R D E R
                                  R. BASANT, J.

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                            B.A.No.  4545 of   2007

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                    Dated this the 30th day of   July, 2007


                                      O R D E R

Application for anticipatory bail. The petitioner is the 5th

accused. He, along with the co-accused, faces allegations in a crime

which was initially registered, inter alia, under Section 395 I.P.C.

and the provisions of the Explosive Substances Act. The crux of the

allegation is that when the defacto complainant was proceeding on a

two wheeler on 5.9.06 at about 10.15 p.m. the petitioners, who

happened to see him accidentally at that place and time, on account of

prior animosity attacked the defacto complainant. In the course of

such attack the purse containing money of the defacto complainant

fell down and the same was allegedly removed. In the F.I.R. three

persons are named. There is a specific allegation that there are others

also involved in the crime. In the course of investigation the police

have come to the conclusion that altogether there were only five

accused persons, who indulged in the culpable overt acts,

eventhough there were a large number of people available in the

spot. The petitioner was arrayed as 5th accused as per report dt.

9.10.2006. The case diary shows that after interrogating the other

B.A.No. 4545 of 2007

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witnesses, who were available in the scene, the involvement of the

petitioner and the 4th accused ascertained. Investigation is in progress. The

petitioner has not been arrested so far. Accused 1 to 3 have subsequently

been arrested. Their statements have been recorded. Their confession

statements also indicate the involvement of the petitioner.

2. The learned counsel for the petitioner submits that the allegations

are totally false. The petitioner is a person, who resides in the

neighbourhood and in that capacity well known to the defacto complainant.

The learned counsel tries to take advantage of the fact that the petitioner

has not been named in the F.I.R. He further points out that though the

report dt. 9.10.06 is alleged to have been filed to include the petitioner in

the array of accused, the petitioner had no information about the said report

and the petitioner has come to know that the said report had reached the

court only in May, 2007. In these circumstances directions under Section

438 Cr.P.C. may be issued in favour of the petitioner, it is prayed.

3. The learned Prosecutor opposes the application. In the nature of

the allegations the Prosecutor was requested to place the case diary after

flagging the relevant pages. This court felt that it must be ascertained

whether allegations were raised against the petitioner and the 4th accused

on 9.10.06 itself or it was a subsequent inclusion malafide.

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4. I shall not embark on a detailed discussion on the acceptability of

the allegations raised or the credibility of the data collected. Suffice it to

say that perusal of the case diary conveys to me that the contention that

the petitioner and the co-accused have been arrayed as accused only in May,

2007 does not appear to be convincing at this stage. I am satisfied that

there are no circumstances which can persuade this Court to invoke the

extra ordinary equitable discretion under Section 438 Cr.P.C. 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. Needless to say, if

the petitioner appears before the Investigating Officer or 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)

Judge

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