IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 Bail Appl..No. 5083 of 2008() ----------------------------- CRIME NO. 1092/2008 OF ANGAMALY POLICE STATION PETITIONER : ACCUSED NO.3 ------------------------------------------ SONY, AGED 22, S/O.THOMAS, KOONATHAN HOUSE, THURAVOOR P.O., ANGAMALY, ERNAKULAM. BY ADV. SRI.B.RAMAN PILLAI SRI.SUJESH MENON SRI.JOSEPH P.ALEX RESPONDENT: COMPLAINANT ------------------------ STATE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03/09/2008, ALONG WITH BA NO. 5119 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.Nos. 5083 &5119 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of September,2008 O R D E R Application for anticipatory bail. 2. Petitioner in B.A.no.5083/2008 is the 3rd accused and petitioner in B.A. no.5119/2008 is the 2nd accused in the crime. The alleged offence is under section 395 IPC. According to prosecution, on 21-7-2008 at about 1 a.m. petitioners along with other accused (total five in number) allegedly committed decoity, assaulted defacto-complainant and Rs.4,300/- was snatched away from his pocket. Weapon was also used by the 1st accused to commit the offence. Defacto-complainant was injured and he was hospitalized. 3. Sri. Sujesh Menon, learned counsel for the 3rd accused submitted that this case is falsely foisted due to political rivalry. As per his information, accused 4 and 5 who are aged about 22 – 23 years were returning after watching a movie. They had some altercation with the persons who were sleeping in the varanda during night, when one of them lifted the sheet. People of the locality intervened and they were apprehended and handed over to the police. This happened at 1 a.m. in the night. Accused 3 and BA 5083/08 -2- 4 were sympathizers of DYFI and in August 2007 a dispute arose in connection with hoisting the flag on the Independence Day. 4.One group of DYFI workers wanted their leader to hoist the flag, whereas some of the workers of DYFI opined that an independent person may hoist the flag, since Independence day is not a political function. Petitioners were also taking the stand that the flag should be hoisted by an independent person. Because of this dispute, DYFI workers were on enmical towards with petitioners and accused 4 and 5. Accused 4 and 5 were arrested from the spot and under the circumstances stated above they were taken into custody by the police. 5. It is also submitted by Sri Sujesh Menon learned counsel for accused No.3 that after about nine hours, petitioners' details were ascertained and they were also deliberately and falsely implicated in the offence due to political rivalry. Their names were caused to be mentioned in the First Information Statement itself. First informant is a Tamilian who is a septic tank cleaner. Neither petitioners nor his companions were known to the defacto- complainant and they were not acquainted with each other and their names are included at the instance and intervention of those who are motivated against petitioners. BA 5083/08 -3- 6. Accused 2 and 3 are students of I.T.C. and they are undergoing course of X-ray Welding. They are aged 22 and 23 years. If they are arrested in connection with this crime, their entire future will be destroyed. As per the prosecution case, 1st accused ran to the darkness, accused 2 and 3 escaped in a motor bike. It is also submitted that as per the allegation of the prosecution, petitioners have not used any weapons nor taken away money and there is nothing to be recovered from them. It is the 1st accused who had allegedly snatched away the money. It is also submitted that the Honourable Chief Minister had visited the police station in connection with the crime. Petitioners are prepared to co-operate with the investigation and abide by any condition imposed, but if they are arrested in this crime, they will be detained and tortured. 7. The application is strongly opposed. Learned Public Prosecutor submitted that an offence of this nature has taken place at 1 a.m. in the morning and all the accused had their role in the offence. They had assaulted defacto-complainant and his associates. Defacto-complainant had sustained injuries also and he was hospitalized on the same day. A hammer was used by 1st accused to assault defacto-complainant. The delay in registration BA 5083/08 -4- of the crime is only because the Flying Squad who took accused 4 and 5 to custody came to the police station only in the morning and defacto-complainant was hospitalized and he was also not available to give the statement. It is not correct to say that petitioners are not involved in the crime. Their names are mentioned in the First Information Statement itself. 8. On hearing both sides it is clear that petitioners were not arrested from the spot. There is no case for the prosecution that petitioners were known to defacto-complainant previously or that they had any acquaintance with defacto-complainant. But in the First Information Statement the names of the accused are mentioned and it is not made clear how defacto-complainant came to know about the details. Wound certificate available in the case diary would show that none of the details of petitioners were disclosed to the doctor. Except an allegation of “assault”, no other details are seen disclosed at the time when the injured was examined by the doctor. Even according to petitioners, some altercation had taken place between accused 4 and 5 and defacto-complainant and his friends but it is incorrect to say that any decoity had taken place. 9.Though the incident happened at 1 a.m., the crime was BA 5083/08 -5- registered at 10 a.m. after nine hours. As per the case diary, the people of the locality had intervened and they had apprehended accused 4 and 5 at the spot. Necessarily, they will be persons who are acquainted with the incident. It is not explained why the police has delayed the registration of the crime for ten hours, when persons available who could have given sufficient information regarding the incident were available for registration of the crime, even going by the prosecution itself. 10. Taking all these facts into consideration, I find that an order can be passed ensuring an opportunity for the police for interrogation of petitioners. 11. Hence, the following order is passed:- (1) Petitioners shall surrender before the Magistrate Court concerned within seven days from today and if any bail application is filed, petitioners shall be released on bail on their executing a bond for Rs. 25,000/- each with two solvent sureties each for the like amount to the satisfaction of the learned Magistrate on the following conditions:- i) Petitioners shall make himself available BA 5083/08 -6- for interrogation by the Investigating Officer as and when directed. ii) Petitioners shall co-operate with the investigation. The application is allowed as above. K. HEMA, JUDGE. mn.