IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 Bail Appl..No. 2065 of 2008() ----------------------------- CMP.353/2008 of D.C & SESSIONS COURT,TRIVANDRUM CRIME NO.37/2008 OF POOJAPPURA POLICE STATION .................... : PETITONER -------------------------- BENCHAMIN @ KIRAN S/O. BABU PUTHEN VEEDU, VETTAMUKU, VATTIYOORKAVU THIRUVANANTHAPURAM BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENTS: ------------- STATE OF KERALA,REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- B.A.No.2065 of 2008 ---------------------------------------- Dated this the 4th day of April 2008 O R D E R Application for anticipatory bail. The petitioner is the second accused. Altogether there are three accused persons. All the three are named in the F.I.R. The incident took place on 3/2/2008. Personal animosity is the alleged motive. Sword is the weapon used for infliction of injuries. Crime was registered alleging offences punishable inter alia under Section 308 I.P.C and Section 27 of the Arms Act. 2. The learned counsel for the petitioner submits that the petitioner is absolutely innocent. Inclusion of the allegation under Section 308 I.P.C is not justified at all. There is absolutely no merit in the contention that the offence under Section 308 I.P.C has been committed. Going by the nature of the injury, the alleged manner of assault etc., it is very evident that the allegation under Section 308 I.P.C has been included only with vexatious intent. The petitioner may be granted anticipatory bail, it is prayed. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that even assuming that the allegation under Section 308 I.P.C can be ignored or eschewed, still there remains the allegation for non-bailable offence B.A.No.2065/08 2 punishable under the Arms Act. In these circumstances, the learned Public Prosecutor submits that anticipatory bail may not be granted to the petitioner. 4. The learned Public Prosecutor was requested to explain the details of the injury, if any, suffered by the victim. The description of the injury persuades me to accept the contention of the learned counsel for the petitioner that at this stage and with the available materials, the allegation under Section 308 I.P.C can be eschewed and ignored while considering the application for regular bail. I am satisfied, in these circumstances, that this petition can be allowed in part but with appropriate observations regarding consideration of regular bail by the learned Magistrate. 5. In the result, this petition is allowed in part. Prayer for directions under Section 438 Cr.P.C is dismissed; but it is directed that the petitioner can surrender before the investigating officer or the learned Magistrate and then seek regular bail in the ordinary course and when such application for regular bail is taken up for consideration by the learned Magistrate, the learned Magistrate shall eschew and ignore the allegation under Section 308 I.P.C. (R.BASANT, JUDGE) jsr B.A.No.2065/08 3 B.A.No.2065/08 4 R.BASANT, J. CRL.M.CNo. ORDER 21ST DAY OF MAY2007