IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 Bail Appl..No. 891 of 2008() ---------------------------- CRIME NO.38/08 OF VAZHAKKAD POLICE STATION : PETITIONERS/ACCUSED NOS.2 TO 5: ------------------------------------------------ 1. ASHARAF K.K., S/O. MUHAMMED, NARANATTU HOUSE, CHEEKKODE, VAVOOR,MALAPPURAM DIST 2. ASHARAF, S/O. ALI MUSLIAR, KUNNATHODI HOUSE, CHEEKKODE,VAVOOR,MALAPPURAM DIST 3. JASEER, S/O.HUSSAIN KUTTY MASTER, PEZHUNGATTIL HOUSE,CHEEKKODE,VAVOOR,MALAPPURAM DT. 4. IQBAL, S/O. ABDULLA, MALAYIL HOUSE, CHEEKKODE, VAVOOR,MALAPPURAM DIST. BY ADV. SRI.BABU S. NAIR SRI.K.RAKESH RESPONDENTS: STATE: ------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VAZHAKKAD POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SRI.JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ B.A.No.891 of 2008 ------------------------------------- Dated this the 28th day of February, 2008 ORDER Application for regular bail. Petitioners are accused 2 to 5. Altogether there are 5 accused persons. All of them are named in the F.I.R. The crux of the allegations is that on account of group rivalries among persons belonging to the Muslim community, the accused persons allegedly trespassed into the residential building of the defacto complainant and indulged in wanton acts of mischief and violence. The crime has been registered on 25.01.08. Investigation is in progress. The 1st accused has already been arrested. The petitioners apprehend imminent arrest. 2. The learned counsel for the petitioners submits that those in power are taking partisan attitude in favour of the other group and the group to which the petitioners belong is subjected to vexation and harassment by initiating a number of proceedings against them. The petitioners do not deserve to endure the trauma of arrest and detention. The learned counsel for the B.A.No.891 of 2008 2 petitioners submits that the defacto complainant herein is arrayed as an accused in Crimes 36 and 39 of 2008. The alleged incident in those crimes took place on 24.01.08. If the defacto complainant were injured in this case and was remaining in the hospital, it is unlikely that he could have been arrayed as an accused in the incident which took place on 24.01.08. The learned counsel for the petitioners in these circumstances prays that the petitioners may be granted anticipatory bail. 3. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that the available indications clearly point to the culpability of the petitioners. They are named in the F.I.R. F.I statement was lodged by the victim when he was undergoing treatment in the hospital. The mere fact that some subsequent allegations have been raised against him in respect of a later incident which took place on 24.01.08 is no reason to jump to the conclusion that the allegations raised in this case are incorrect, submits the learned Public Prosecutor. The learned Public Prosecutor had drawn my attention to the scene mahazer prepared in the case which B.A.No.891 of 2008 3 corroborates in a telltale manner the version of the defacto complainant about the alleged damage caused to the premises of the victim. The learned counsel for the petitioners submits that the defacto complainant is not shown to have suffered any serious injury. There is no allegation to that effect also. All other offences alleged are bailable. 4. Having considered all the relevant inputs, I am persuaded to agree that there is merit in the opposition by the learned Public Prosecutor. This is a fit case where the petitioner must surrender before the Investigating Officer or the learned Magistrate having jurisdiction. I am unable to perceive any features in this case which can justify the invocation of the extraordinary equitable discretion under Section 438 Cr.P.C. The statements in the F.I statement show that the defacto complainant was in the hospital and his statement was recorded on 25.01.08. The mere fact that in some other case, allegations have been raised of involvement of the defacto complainant in an incident which took place on 24.01.08 is no reason to come to the conclusion that the defacto complainant had not suffered any B.A.No.891 of 2008 4 injuries on 23.01.08 or that he was not in the hospital on 24.01.08. 5. This application is, in these circumstances, dismissed, but I may hasten to observe that if the petitioners surrender before the Investigating Officer or 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 appropriate orders on merits and expeditiously. (R.BASANT, JUDGE) rtr/-