IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 Bail Appl..No. 1271 of 2008() ----------------------------- CRIME NO.60/07 OF KURAVILANGAD POLICE STATION PETITIONER/ACCUSED ----------------------------------- JOBY THOMAS MANAMMOOTTIL, S/O. KURIAN JOSEPH, P.O.UZHAVOOR, KOTTAYAM DISTRICT. BY ADV. SRI.C.A.JOSEPH SRI.K.K.MOIDEEN RESPONDENTS: COMPLAINANT ------------------------ 1. THE SUB INSPECTOR OF POLICE, S.H.O., KURAVILANGAD. 2. THE 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 19/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 1271 of 2008 ------------------------------------------------- Dated this the 19th day of March, 2008 ORDER Application for anticipatory bail. The petitioner faces allegations in a crime registered, inter alia, under Sec.326 of the IPC. The alleged incident took place on 6/3/07. Altogether, there are 3 accused persons. The petitioner is the 2nd accused. He is also named in the F.I.R. Prior animosity is the alleged motive. Dangerous weapons including iron rod was used in the commission of the crime. Fracture of the fibula is the injury suffered. Investigation is in progress. The petitioner apprehends imminent arrest. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Even the de facto complainant has now realised that it was a case of mistaken identity and that the petitioner was not the one who was really B.A. No. 1271 of 2008 -: 2 :- involved in the crime. The de facto complainant has settled the dispute. He has sworn to an affidavit before the Notary public. A copy of the same is produced as Annexure-I. It is, in these circumstances, prayed that anticipatory bail may be granted to the petitioner. 3. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor opposes the application. The learned Public Prosecutor, after taking instructions, reports to this Court that the de facto complainant has not really entered into any such settlement or compromise with the petitioner. In any view of the matter, even if the de facto complainant is willing to turn hostile and eat his own words, that is no satisfactory reason to invoke the extraordinary equitable discretion under Sec.438 of the Cr.P.C., submits the learned Public Prosecutor. 4. I have considered all the relevant inputs. Having considered all the circumstances, I find merit in the opposition by the learned Public Prosecutor. There is nothing available at the moment to come to a safe conclusion that the de facto complainant has settled and compounded the offence allegedly committed by the petitioner, even if it be a non-compoundable offence in law. I am satisfied, in these circumstances, that this is a fit case where the petitioner must surrender before the learned B.A. No. 1271 of 2008 -: 3 :- Magistrate and seek regular bail in the ordinary course. No features which can justify or warrant the invocation of the extraordinary equitable discretion under Sec.438 of the Cr.P.C. are shown to exist. I do take note of the further submission of the learned Public Prosecutor that the petitioner has criminal antecedents. 5. In the result, this bail application is dismissed; but with the observation that if the petitioner surrenders before the learned Magistrate and seeks 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. 6. The petitioner shall, of course, be entitled to satisfy the learned Magistrate, as a matter of fact, that the dispute has been compounded by ensuring the presence of the de facto complainant before the learned Magistrate. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge B.A. No. 1271 of 2008 -: 4 :-