IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 Bail Appl..No. 339 of 2008() ---------------------------- CRIME NO.4/08 OF MALA POLICE STATION : PETITIONER/ACCUSED 1,2,4 & 5 --------------------------------------------- 1. SUTHI, AGED 21, S/O. SUBRAN, THALAT HOUSE, KUNNATHUKAD DESOM, P.O.MALA, THRISSUR DISTRICT. 2. MANU, AGED 18, S/O. CHATHU, PALLIYIL HOUSE, KUNNATHUKAD DESOM, P.O.MALA, THRISSUR DISTRICT. 3. VYSAGAN, AGED 20, S/O. GOPI, MENINGATHARA HOUSE, KUNNATHUKAD DESOM, P.O.MALA, THRISSUR DISTRICT. 4. VIJESH, AGED 22, S/O. VIJAYAN, PUTHIYEDATH HOUSE, KUNNATHUKAD DESOM, P.O.MALA, THRISSUR DISTRICT. BY ADV. SRI.M.H.HANIL KUMAR RESPONDENTS: COMPLAINANT/STATE ------------------------------ 1. SUB INSPECTOR OF POLICE, MALA POLICE STATION, THRISSUR DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.339 of 2008 ------------------------------------- Dated this the 23rd day of January, 2008 ORDER Application for anticipatory bail. Petitioners are accused 2 to 5 (not 1 to 4 and 5, submits the learned Public Prosecutor) in a crime registered for offences punishable, inter alia, under Section 326 r/w 149 I.P.C. Petitioners were members of an unlawful assembly of persons who, in prosecution of their common object, attacked the defacto complainant and caused grievous hurt to him by beating him with an iron rod. The mother and sister of the defacto complainant were also victims and they had also suffered injuries. The alleged incident took place on 3.1.08. F.I.R was registered on 04.01.08. The 1st accused has already been arrested and the weapon of offences has already been recovered. Investigation is in progress. The petitioners apprehend imminent arrest. 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. The real incident did not take place in the manner alleged by the defacto complainant at all. No dangerous weapon was used for the commission of the offence. In these circumstances, it is prayed that anticipatory bail may be granted to the petitioners. B.A.No.339 of 2008 2 3. The learned Public Prosecutor opposes the application. The case diary has been placed before me for my perusal. The case diary clearly indicates that a fracture of nasal bone has resulted. The weapon of offence is described at some place as iron rod and some other places as a `pattavadi'. Be it either, I find no reason to assume that the allegation under Section 326 is not justified. 4. I find merit in the opposition by the learned Public Prosecutor. I am not satisfied that there are any features in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. This, I agree with the learned Public Prosecutor, is a fit case where the petitioners must appear before the Investigating Officer or the learned Magistrate having jurisdiction and then seek regular bail. 5. This application is, in these circumstances, dismissed, but I may hasten to observe that if the petitioners surrender before the Investigating Officer or 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 appropriate orders on merits and expeditiously. (R.BASANT, JUDGE) rtr/- B.A.No.339 of 2008 3