IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 Bail Appl..No. 952 of 2008(F) ----------------------------- CRIME NO. 722/07 OF E.T. SOUTH POLICE STATION PETITIONER : ACCUSED NO.11: ------------------------------- SURESH, S/O.SUBBAYYAN, AGED 29 YEARS, KAVALAMPILLY PADOM, PARADISE ROAD, VYTTILA, KOCHI-19. BY ADV. SRI.K.V.SABU RESPONDENTS: COMPLAINANT: ------------------------- CIRCLE INSPECTOR OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.K. SURESH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 952 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of March, 2008 O R D E R Application for anticipatory bail. The petitioner is the 11th accused. He faces allegations in a crime registered alleging the offence punishable under Section 302 I.P.C. Later, allegations under Section 120B I.P.C. have also been raised in the crime. Altogether there are 12 accused persons now. Accused 1 to 10 were allegedly conspirators. They had also taken part in the incident which took place on 18.11.2007 when the miscreants in two vehicles proceeded to the house of the defacto complainant. They allegedly attacked the victim/deceased, who happened to be present in the house of the defacto complainant. The defacto complainant was also allegedly attacked. The petitioner's complicity was not revealed at the earlier stage. He was brought on the array of accused later. 2. Certain misstatements were allegedly made by the Prosecutor at the early stages when this bail application came up B.A.No. 952 of 2008 2 for hearing and the bail applications of some other accused were considered. Initially it was stated that the prosecution has no case that the petitioner is also one of the conspirators. It is only alleged that the petitioner had role to play after the occurrence and that the petitioner had assured the miscreants of all necessary protection after they accomplished the task of attack on the victim. It is now urged before me that this was a misstatement made earlier and that right from the very beginning there are indications to show that the petitioner was one of the conspirators, who originally schemed the attack, though later there was a subordinate conspiracy between accused 1 to 10 before they proceeded on the mission to the house of the defacto complainant. 3. Accused 4 and 5 are employees of the petitioner. He runs a travel service. This is not done by him in his personal name, but he runs it in the name of one Rajesh, who runs the business benami for the petitioner herein. Accused 4 and 5 had animus against the deceased. The deceased had allegedly come to the travel service and had created havoc there. He had also misbehaved to accused 1 to 4. All these together allegedly acted as the motive. The miscreants long before the B.A.No. 952 of 2008 3 occurrence had gone to the petitioner to apprise him of the alleged misdeeds of the deceased. The prosecution alleges that the genesis of the conspiracy started there and the petitioner had assured the miscreants of protection and had wanted them to unleash an attack on the deceased. What transpired on the date of the occurrence was a continuation of the conspiracy that took place initially in the house of the petitioner and it is now alleged that the petitioner is also part of the conspiracy eventhough there is no specific case that the petitioner was actually present when the miscreants met immediately prior to the incident on 18.11.2007. It is the case of the prosecution that subsequent to the incident the petitioner had offered protection to some of the accused through his friend, 12th accused, who had ensured that the principal miscreants were harboured for some time. 4. The learned counsel for the petitioner submits that the petitioner is innocent. The allegations are raised to some how ensure that the petitioner is also dragged into this crime. The petitioner had nothing to do with the crime. He does not deserve to endure the B.A.No. 952 of 2008 4 trauma of arrest and detention. He may now be enlarged on bail, it is prayed. 5. I have considered all the relevant inputs. At my request the learned Prosecutor has made the case diary available for my perusal. As directed by this Court the Investigating Officer had filed two statements explaining to the Court the precise allegations against the petitioner. 6. The learned Prosecutor points out that the petitioner has a history of chronic criminal antecedents. Details have been furnished to the Court. He is a person whose name is maintained in the rowdy list of the police station. He is involved in several other crimes. The learned Prosecutor submits that the petitioner does not deserve to be armed with an order of anticipatory bail. He may be directed to surrender before the Investigating Officer or the learned Magistrate and then seem regular bail, submits the Prosecutor. 7. I have considered all the relevant inputs. At this early stage of investigation I shall not embark on any detailed discussion on merit about the acceptability of the allegations raised or the credibility of the B.A.No. 952 of 2008 5 data collected. Suffice it to say that, having rendered my very anxious consideration to the totality of inputs, notwithstanding the earlier misstatements made at the Bar, I am unable to find any circumstance justifying or warranting the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioner. This, I agree with the learned Prosecutor, is a fit case where the petitioner must be directed to appear before the Investigator or the learned Magistrate having jurisdiction and then seek regular bail in the ordinary course. In coming to this conclusion I have taken note of the relevant statements made by the said witness Rajesh, who runs the travel service allegedly benami in the name of the petitioner. I have taken note of the allegations of what transpired after the incident also. At any rate, I am satisfied that the police is entitled to get an opportunity to custodially interrogate the petitioner. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioner appears before the learned Magistrate and applies for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must B.A.No. 952 of 2008 6 proceed to pass orders on merits, in accordance with law and expeditiously. (R. BASANT) Judge tm