IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 Bail Appl..No. 2264 of 2008() ----------------------------- CRIME NO.257 OF 2008 OF PATHANAMTHITTA POLICE STATION .................... : PETITIONERS/ACCUSED NOS 1 TO 5 ---------------------------------------------- 1. SUSHEELAN, AGED 34 YEARS, S/O.CHANDRADAS, KIZHAKKEDATHU MURUPEL HOUSE, MAILAPPARA TOWN P.O., PATHANAMTHITTA. 2. MADHU, S/O.NANU, CHAKKALATHU KIZHAKKETHIL, MAILAPPARA TOWN P.O., PATHANAMTHITTA. 3. MANU, S/O.NANU, CHAKKALATHU KIZHAKKETHIL, MAILAPPARA TOWN P.O., PATHANAMTHITTA. 4. RETHEESH, AGED 22 YEARS, S/O.RAGHAVAN, CHAKKALATHU HOUSE, MAILAPPARA TOWN P.O., PATHANAMTHITTA. 5. PRAKASH, AGED 23 YEARS, S/O.KUNJU PILLAI, CHAKKALATHU KIZHAKKETHIL, MAILAPPARA TOWN P.O., PATHANAMTHITTA. BY ADV. SRI.M.T.SURESHKUMAR SRI.V.V.RAJA RESPONDENTS: COMPLAINANT ------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/04/2008 ALONG WITH B.A.NO.2280 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.Nos.2264 and 2280 of 2008 ------------------------------------- Dated this the 11th day of April, 2008 ORDER These are applications for anticipatory bail. Petitioners are common accused in two crimes. In both crime, they are arrayed as accused 1 to 5. The crux of the allegations in these two crimes is that in 2 separate incidents which had taken place on the same day, the petitioners in furtherance of their common intention had indulged in culpable overt acts against a neighbour who had taken objection to the manner in which the petitioners and others were playing games in the property near the house of the defacto complainant. Actuated by ill will and malice towards the defacto complainant, it is alleged that the petitioners had trespassed into the residential building of the defacto complainant and indulged in wanton acts of mischief and violence. 7 persons had suffered injuries. In that incident no one has suffered any grievous hurt. B.A.No.2264 of 2008 arises from that crime and the allegation raised there is, inter alia, under Section 452 I.P.C. After the said incident which took place, it is alleged that the injured persons were taken to the hospital. The petitioners allegedly indulged in further acts of violence and mischief near the hospital where the B.A.Nos.2264 and 2280 of 2008 2 injured were taken. In that second crime, the allegation is that the offences punishable, inter alia, under Section 326 I.P.C were committed. One of the injured persons has lost his teeth and that is why the allegation under Section 326 I.P.C is raised. 2. The learned counsel for the petitioners submits that the petitioners are absolutely innocent. There was a dispute between the petitioners and the defacto complainant. The defacto complainant had collected men to attack the petitioners. There was an altercation. The matter was talked over and settled by intervention of respectable elder members of the locality. But subsequently false and frivolous allegations have been raised against the petitioners. The learned counsel for the petitioners further points out that there is overt acts alleged against the 1st accused and no such specific overt acts are alleged against the other petitioners also. 3. The learned Public Prosecutor opposes the application. The allegations reveal serious offences. At this stage of the proceedings, it is not necessary to consider the specific overt acts of individual. It is clearly evident that all the petitioners were acting in furtherance of their common intention. The learned Public Prosecutor, in these circumstances, submits that the B.A.Nos.2264 and 2280 of 2008 3 petitioners may be directed to surrender before the learned Magistrate and seek regular bail. 4. I find merit in the objection raised by the learned Public Prosecutor. I am not persuaded to agree that there are any circumstances in this case which can justify or warrant the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. The contention of the counsel that the entire matter was settled and thereafter false allegations have been raised does not appear to me to be true. 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.Nos.2264 and 2280 of 2008 4