IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 Bail Appl..No. 1609 of 2008() ----------------------------- CRIME NO.112/08 OF KOTTIYAM POLICE STATION, KOLLAM CRMP.600/2008 of D.C. & SESSIONS COURT,KOLLAM .................... PETITIONER/4TH ACCUSED: ---------------------------------------- MUKESH M., AGED 23 YEARS, S/O. MURALEEDHARAN, SREENILAYAM, VADAKKUMKARA KIZHAKKATHIL, UMAYANALLOOR P.O., KOLLAM. BY ADV. SRI.BIMAL K.NATH SRI.S.JAMAL SRI.E.M.SUNIL KUMAR SMT.SMITHA DIVAKARAN SRI.SREEVALSAN.V RESPONDENTS: ------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ENRAKULAM. BY PUBLIC PROSECUTOR SRI. JAI GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02/04/2008, ALONG WITH BA NO. 1637 OF 2008THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ------------------------------------------------- B.A. Nos. 1609 & 1637 of 2008 ------------------------------------------------- Dated this the 2nd day of April, 2008 ORDER Application for anticipatory bail. The petitioners are accused 2 and 4. Altogether, there are 4 accused persons. They face allegations for offences punishable, inter alia, under Sec. 308 read with Sec.34 of the IPC. Sec.308 of the IPC is the only non-bailable offence alleged. 2. The alleged incident took place on 7/2/08. A boy, who was with the de facto complainant, was allegedly attacked by the accused persons. The de facto complainant had questioned that conduct. Enraged by that, the accused had later allegedly attacked the de facto complainant. A crime has been registered alleging offences punishable, inter alia, under Sec.308 of the IPC. Investigation is in progress. The petitioners apprehend imminent arrest. B.A. Nos. 1609 & 1637 of 2008 -: 2 :- 3. The learned counsel for the petitioners submit that the petitioners are absolutely innocent. The allegation under Sec.308 of the IPC has been included with the sole intention of vexing and harassing the petitioners. There is absolutely nothing to indicate the commission of an offence punishable under Sec.308 of the IPC. Such allegation has been included only to ensure that the petitioners are obliged to remain in custody for as long a period as possible before they secure bail. The allegation in the F.I.R. is that the de facto complainant was attacked with iron rod. But significantly there is no injury which can even remotely suggest an attack with such dangerous weapon. The learned counsel point out that in fact the allegation to the Doctor is totally different and there is no whisper of use of any dangerous weapon in such narration of the alleged cause of injury made to the Doctor. No serious injury has also been suffered by the injured though it is urged that his testicles were squeezed and there was an oedema in that area. 4. The learned Public Prosecutor opposes the application. The learned Public Prosecutor submits that it is true that the use of any weapon has not been narrated to the Doctor and there is B.A. Nos. 1609 & 1637 of 2008 -: 3 :- no specific injury which can be said to corroborate such allegation of attack with a weapon. In these circumstances, the petitioners may not be granted anticipatory bail. They may be directed to surrender and seek regular bail, submits the learned Public Prosecutor. 5. Having considered all the relevant inputs, I find merit in the contention of the learned counsel for the petitioners that the inclusion of the allegation under Sec.308 of the IPC cannot be justified by the materials presently collected by the Investigating Officers and use of a dangerous weapon is not indicated when we go by the nature of the injuries or by the alleged cause narrated to the Doctor. In these circumstances, I am satisfied that anticipatory bail, subject to appropriate conditions which shall ensure the interests of fair, efficient and expeditious investigation, can be granted in favour of the petitioners. 6. In the result, this petition is allowed. Following directions are issued under Sec.438 of the Cr.P.C: (i) The petitioners shall appear before the learned Magistrate having jurisdiction at 11 a.m. on 9/4/08. They shall B.A. Nos. 1609 & 1637 of 2008 -: 4 :- be released on regular bail on their executing bonds for Rs.25,000/- each with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. (ii) The petitioners shall make themselves available for interrogation before the Investigating Officer between 10 a.m. and 3 p.m. on 10/4/08 and 11/4/08. During this period the Investigator shall be at liberty to interrogate the petitioners in custody and take all necessary steps for the proper conduct of the investigation. Thereafter the petitioners shall appear before the Investigating Officer on all Mondays and Fridays between 10 a.m. and 12 noon for a period of one month. Subsequently, they shall so make themselves available for interrogation before the Investigating Officer as and when directed by the Investigating Officer in writing to do so. (iii) If the petitioners do not appear before the learned Magistrate as directed in clause (i), directions issued above shall thereafter stand revoked and the police shall be at liberty to arrest the petitioners and deal with them in accordance with law as if these directions were not issued at all. (iv) If the petitioners were arrested prior to their surrender B.A. Nos. 1609 & 1637 of 2008 -: 5 :- on 9/4/08 as directed in clause (i) above, they shall be released on their executing bonds for Rs.25,000/- each without any sureties undertaking to appear before the learned Magistrate on 9/4/08. (R. BASANT, JUDGE) Nan/