IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 Bail Appl..No. 396 of 2008() ---------------------------- CRIME NO. 165/08 OF ARYANCODE POLICE STATION .................... PETITIONER/11TH ACCUSED ---------------------------------------- VARGHESE, KATTODE KIZHAKKUM KARA HOUSE, OTTASEKHARAMANGALAM, NEYYATTINKARA. BY ADV. SRI.K.GOPALAKRISHNA KURUP SRI.S.MANU RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. CIRCLE INSPECTOR OF POLICE, VELLARADA, THIRUVANANTHAPURAM. 3. SUB INSPECTOR OF POLICE, ARYANCODE POLICE STATION, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - B.A.No. 396 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th 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, inter alia, under sections 120B and 307 I.P.C. Altogether there are 11 accused persons. The 10th accused and the defacto complainant had some strain in their relationship and some personal animosity. The 10th accused was arrested and detained in a prison. While he was in prison, he allegedly came across the first accused. The first accused is a person having criminal antecedents. The 10th accused complained to the first accused about the difficulties and inconveniences which he was facing from the injured Sreekumar. He wanted the first accused to help him to do away with the injured. Accused 8, 9 and 11 are friends and relatives of the 10th accused. 2. The crux of the allegations is that while the 10th accused was in prison, there was a conspiracy between accused 1 and 8 B.A.No. 396 of 2008 2 to 11 for the liquidation of the injured Sreekumar. The first accused got out of the prison earlier and he requisitioned the services of accused 1 to 6. They, in three motor cycles, which were made available by the 7th accused for this purpose, allegedly proceeded to the business premises of the victim Sreekumar. The 11th accused was available near the premises. It is the case of the prosecution that the 11th accused had earlier informed the miscreants that the victim Sreekumar was available in the business premises and it is accordingly that accused 1 to 6 after making the necessary preparations proceeded to the place where the victim Sreekumar was available. The petitioner/A11 allegedly helped accused 1 to 6 to identify and spot the victim. They unleashed a brutal attack on the victim. The defacto complainant is a friend of Sreekumar. He was also attacked and he suffered injures. Sreekumar as well as the defacto complainant thus suffered injuries. 3. In the course of investigation the complicity of the petitioner was ascertained. The injured Sreekumar had occasion to come to this Court complaining about the inadequate and improper investigation B.A.No. 396 of 2008 3 and as per directions of this Court a senior police officer was entrusted with the investigation. It is in the course of such investigation by him that he was able to unearth all the details relating to this crime. The Investigators now want to arrest the 11th accused and interrogate him. 4. The learned counsel for the petitioner submits that the petitioner is innocent. His presence at the scene of the crime is not seriously disputed now before me. It is submitted that the 11th accused had innocently told accused 1 to 6, who were strangers to him and who made enquiries about the said Sreekumar that the office of the Sreekumar was near the scene of the crime. Except this he has no role whatsoever in the commission of the crime. It is in these circumstances prayed that the petitioner may be granted anticipatory bail. 5. The learned Prosecutor vehemently opposes the application. He submits that the sequence of events reveal the complicity of the petitioner. Satisfactory materials have been collected, including the confession statements of the co-accused, to reveal the complicity of the petitioner. He submits that it is true that the 10th accused had B.A.No. 396 of 2008 4 already been granted bail by the Sessions Court. But at that stage the dimensions of the conspiracy was not perceived by the Investigating Officer. The 10th accused was inside the prison at the relevant time. The learned Sessions Judge has chosen to grant anticipatory bail to the 10th accused on that reason alone. It is pointed out that an application by the injured Sreekumar for cancellation of the bail is pending before this Court as Crl.M.C. 3535 of 2007. The fact that anticipatory bail has been granted to the 10th accused may not in any way weigh with this court as a sufficient reason to grant anticipatory bail to the petitioner herein, whose role is different and whose presence at the scene of the occurrence is not even specifically denied. 6. Having considered all the relevant inputs, I am unable to perceive any features in this case, which would justify the invocation of the extra ordinary equitable discretion under section 438 Cr.P.C. in favour of the petitioners. This I agree with the learned Prosecutor, is a fit case where the petitioners must resort to the ordinary and normal procedure of appearing before the Investigator or the learned B.A.No. 396 of 2008 5 Magistrate having jurisdiction and then seek regular bail in the usual course. 5. This application is accordingly dismissed. I may however hasten to observe that if the petitioners appear before the learned Magistrate and apply for bail after giving sufficient prior notice to the Prosecutor in charge of the case, the learned Magistrate must proceed to pass orders on merits, in accordance with law and expeditiously. (R. BASANT) Judge tm