IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 Bail Appl..No. 64 of 2008() --------------------------- CRIME NO.148/07 OF PAYYAVOOR POLICE STATION -------------------- PETITIONERS: ACCUSED ------------------------ 1. SUDHEESH,A/SO. BALAN,KOCHUVAZHAYIL KANJIRAKKOLLY,PAYYAVOOR , KANNUR. 2. BIJU,S/O. JOSEPH,KURISUMMOOTTIL HOUSE KANJIRAKKOLLY,PAYYAVOOR , KANNUR. 3. BENNY,S/O.JOSEPH,THARIMAKKOM HOUSE KANJIRAKKOLLY,PAYYAVOOR , KANNUR. 4. SHAJI.S/O.LUCKOSE,PULIMOOTTIL HOUSE KANJIRAKKOLLY,PAYYAVOOR , KANNUR. 5. LIJO,S/O. KURIAKOSE,KURIMULLIL HOUSE KANJIRAKKOLLY,PAYYAVOOR , KANNUR. 6. JOMON,S/O.LUCKOSE,PULIMOOTTIL HOUSE KANJIRAKKOLLY,PAYYAVOOR , KANNUR. 7. SUDHEESH,S/O. JOSEPH,KANIARATHERIL HOUSE KANJIRAKKOLLY,PAYYAVOOR , KANNUR. 8. BIJU,S/O. THANKAPPAN,VADAKKEKUDIYIL S HOUSE,KANJIRAKKOLLY,PAYYAVOOR , KANNUR. 9. PETER,S/O. DEVASYA,KUDILIPARAMBIL, KANJIRAKKOLLY,PAYYAVOOR, KANNUR. 10. BENNY,S/O.JOSEPH,ARAKAPARAMBIL KANJIRAKKOLLY,PAYYAVOOR, KANNUR. 11. JOSEKUTTY,S/O. MATHEW NJARUMANNAKATHU,KANJIRAKKOLLY,PAYYAVOOR, KANNUR. -: 2 :- 12. JOSE,S/O. PANUS,ANJILITHOPPIL HOUSE KANJIRAKKOLLY,PAYYAVOOR, KANNUR. 13. JAMES,S/O. JOSEPH,ALAKKAKUNNIL, KANJIRAKKOLLY,PAYYAVOOR, KANNUR. BY ADV. SRI.BLAZE K.JOSE RESPONDENTS: ------------- STATE OF KERALA REP. PUBLIC PROSECUTOR, HIGH COURT OF KERALA REPRESENTING SUB INSPECTOR OF POLICE PAYYAVOOR POLICE STATION. BY P.P. SRI. S.U. NAZAR. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. No. 64 OF 2008 ------------------------------------------------- Dated this the 16th day of January, 2008 ORDER Application for anticipatory bail. The petitioners are accused 1 to 13. They face allegations in a crime registered for offences punishable, inter alia, under Secs.308 and 326 read with Sec.149 of the IPC. Political animosity is the alleged motive. The de facto complainant belongs to the CPM and the accused belong to the Congress party. There are two injured persons. The de facto complainant has suffered a serious injury – fracture of the femur bone. The alleged incident took place on 25/12/07. Investigation is in progress. All the petitioners are named in the FIR. In addition to the 15 named accused, 30 others are also alleged to have taken part of the incident. 2. The learned counsel for the petitioners submits that B.A. No. 64 OF 2008 -: 2 :- the petitioners are absolutely innocent. The allegations are being raised against the petitioners without any justification. The de facto complainant enjoys political clout and exploiting such political clout, this crime is registered to pressurise the persons belonging to the rival political groups. The petitioners were not actually the aggressors. They were only victims of aggression. A counter case has been registered where the offence alleged is one punishable under Sec.326 of the IPC. In this crime, the allegation under Sec.308 of the IPC has also been included only to vex and harass the petitioners. The petitioners may, in these circumstances, be granted anticipatory bail. 3. The learned Public Prosecutor reports that the alleged counter case i.e., Crime No.150/07 cannot now be said to be a counter case, in the strict sense, the offences alleged in the two crimes having allegedly taken place at 8.30 p.m. and 9.30 p.m. respectively. The police have registered crimes against the members of both groups for the offence punishable under Sec.326 of the IPC. In these circumstances, anticipatory bail may not be granted to the petitioners, it is prayed. 4. To a specific query why the allegation under Sec.308 of the IPC has been included in this FIR, the learned Public B.A. No. 64 OF 2008 -: 3 :- Prosecutor accepts that the State has no objection in the application for bail to be filed by the petitioners being considered ignoring the allegations under Sec.308 of the IPC. But, at any rate, for the offence punishable under Sec.326 of the IPC which is alleged against the petitioners as also the members of the other group, anticipatory bail need not and may not be granted, submits the learned Public Prosecutor. 5. Having considered all the relevant inputs, I find merit in the stand taken by the learned Public Prosecutor. I am satisfied that the discretion under Sec.438 of the Cr.P.C. cannot and need not be invoked in the facts and circumstances of this case. This, I agree with the learned Public Prosecutor, is a fit case where the petitioners can be directed to surrender before the learned Magistrate having jurisdiction and then seek regular bail. Appropriate directions regarding disposal of the bail application can also be issued. 6. 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 B.A. No. 64 OF 2008 -: 4 :- and expeditiously. While considering the petitioners' applications for regular bail, the learned Magistrate shall ignore the allegations under Sec.308 of the IPC and pass appropriate orders on merits. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge